In numerous contracts of telecommunication providers, the connection speed of the internet connection is almost always stated as "up to xy Mbit/s in download".
However, this stated maximum speed is often never reached. This is why there are often customer complaints.
The telecommunications providers always refer to the aforementioned wording in the contracts when customers complain and state that no minimum speed of the internet connection is contractually owed. They are only obliged to provide the maximum possible bandwidth at the customer's place of residence.
However, the Munich District Court did not follow this argumentation of the telecommunications providers in a ruling of 07.11.2014, file number 223 C 20760/14.
In the case to be decided by the Munich District Court, a customer of a telecommunications provider had terminated the contract without notice because his internet connection had not come close to the maximum bandwidth of 18 Mbit/s stated by the telecommunications provider.
The Munich District Court has now ruled that the customer's termination without notice was justified.
It stated in this regard:
"The comprehensive weighing of interests to be carried out in the present case shows that there is an extraordinary reason for termination. According to the contract, the defendant owes the provision of a connection with a maximum bandwidth of 18 Mbps. Even if it does not follow from this that 13 Mbit/s is the contractually owed service, if interpreted accordingly, a service is still owed which should at least temporarily reach double-digit values. The court is therefore convinced in the present case that the contractually owed performance is not even approximately provided. In his complaint, the plaintiff explained in detail which measurements he had carried out and brought these to the defendant's attention before court. In response, he received a letter from the defendant, submitted as Annex K6, in which the defendant expressly states that due to the length of the line "no higher bandwidth than its measured value is possible". It is thus clear that higher performance than that measured by the plaintiff cannot be achieved and that the cause for this was not set by the plaintiff. ..."
With regard to the provisions in the GTC of the telecommunications provider, the court stated:
"The defendant cannot rely on the fact that the GTCs state"up to 18 Mbit/s" or that it only has to provide the maximum possible bandwidth at the customer's place of residence. The corresponding clause does not stand up to a review of the content of the GTCs. No interpretation of the clause is conceivable according to which it could be effective. Either it could be understood in such a way that the contract is concluded from the outset under the amended condition that only less bandwidth is available than originally agreed. However, this represents an inadmissible deviation from the basic legal idea that an amended acceptance is to be seen as a new - acceptance-requiring - offer. Insofar as one wanted to understand it in such a way that initially the promised performance is achieved and this subsequently changes, this violates section 308 no. 4 BGB. In this case, the customer would pay full fees for a performance that does not come close to the agreed performance. Contractual terms are, moreover, to be interpreted according to the objective recipient's horizon. In the case of an agreement on a bandwidth of up to 18 Mbit/s, no reasonable average recipient will come to the conclusion that a permanent offer of only about 30% of this corresponds to the contractual service.
Due to this considerable deviation from the service at least promised and advertised, the termination could also have been declared according to § 46 paragraph 8 TKG. The time limit there has been complied with.
In the opinion of the court, the plaintiff would also have the right to terminate the contract under the aspect of the lapse of the basis of the contract, section 313 of the German Civil Code (BGB), since the promised performance was undercut by more than 60 to 70% (similarly also AG Fürth of 07.05.2009, AG Montabaur of 04.08.2008)."
In summary, it can thus be stated that, in the opinion of the Munich District Court, termination without notice of a telecommunications contract is possible if the actually existing connection speed of the internet connection is significantly below the stated maximum connection speed.
We will be happy to answer any questions you may have on this topic and/or provide legal representation.
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
