Deutsche Telekom may not reserve the right within its contracts for internet flat rates in the fixed network area to reduce the transmission speed when a certain transmission volume is reached.
Telekom had advertised a fixed network contract with the words "Internet flat rate". However, due to a contract clause, the original transmission speed was to be reduced to 2 Mbit/s when a certain data volume was reached.
The Regional Court of Cologne has now ruled that such a contractual clause, according to which the original transmission speed can be reduced to 2 Mbit/s when a certain data volume is reached, is invalid after taking into account the legitimate interests of the consumer due to unreasonable disadvantage pursuant to §§ 307 para. 1, para.2 no.2 BGB and, moreover, surprising in the sense of § 305 c para. 1 BGB.
In the opinion of the Regional Court of Cologne, this depends first of all on the interpretation of the term "flat rate". According to the Regional Court of Cologne, this term is to be understood from the point of view of an average customer in the fixed network sector as meaning a fixed price for internet access at a certain bandwidth speed and without restrictions or hidden costs.
In the opinion of the Regional Court of Cologne, the significant reduction of the promised performance (reduction of the original transmission speed) within the framework of an all-inclusive tariff (flat rate) therefore constitutes an unreasonable disadvantage due to the disruption of the equivalence relationship and the endangerment of the purpose pursued by the customer with the conclusion of the (V)DSL contract.
However, the ruling does not mean that DSL providers are not allowed to reduce the original transmission speed after a certain data volume. Rather, DSL providers are no longer allowed to advertise contracts with such contract clauses as a "flat rate", according to the Regional Court of Cologne.
Cologne Regional Court, judgement of 30.10.2013, ref. no.: 26 O 211/13
The decision is not yet final.
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
