Numerous contracts from telecommunications providers almost invariably specify the internet connection speed as: "up to xy Mbit/s download".
However, this specified maximum speed is frequently not attained, leading to numerous customer complaints.
In response to customer complaints, telecommunications providers consistently invoke the aforementioned contractual wording, asserting that no minimum internet connection speed is contractually guaranteed. They claim to be merely obligated to provide the maximum possible bandwidth available at the customer's residential location.
However, the Munich Local Court did not concur with this argumentation from the telecommunications providers in its judgment of november 7, 2014, file reference 223 C 20760/14.
In the case adjudicated by the Munich Local Court, a customer of a telecommunications provider had terminated their contract without notice, citing that their internet connection had failed to even approximate the maximum bandwidth of 18 Mbit/s advertised by the provider.
The Munich Local Court has now ruled that the customer's extraordinary termination was legitimate.
The court elaborated:
„The comprehensive balancing of interests to be undertaken in this case reveals the existence of an extraordinary ground for termination. Under the contract, the defendant is obligated to provide a connection with a maximum bandwidth of 18 Mbit/s. While this does not imply that 13 Mbit/s is the contractually due performance, a service is nevertheless owed, which, when appropriately interpreted, should at least temporarily achieve double-digit values. The court is therefore convinced that the contractually obligated performance is not even remotely being delivered. The plaintiff meticulously detailed in his complaint the measurements he conducted and presented these to the defendant pre-litigation. In response, he received a letter from the defendant, submitted as Exhibit K6, in which the defendant explicitly stated that, due to the line length, 'no higher bandwidth than your measured value is possible.' This conclusively establishes that performance exceeding the plaintiff's measured values cannot be achieved, and the underlying cause was not attributable to the plaintiff. …“
Regarding the provisions in the telecommunications provider's General Terms and Conditions, the court stated:
„The defendant cannot rely on the clause in its General Terms and Conditions stating "up to 18 Mbit/s" or that it merely has to provide the maximum possible bandwidth available at the customer's residence. The corresponding clause does not withstand a content review of general terms and conditions. No interpretation of the clause is conceivable under which it could be effective. Either it would be understood that the contract is concluded from the outset under the altered condition that less bandwidth is available than originally agreed. However, this constitutes an impermissible deviation from the fundamental legal principle that an altered acceptance is to be regarded as a new offer requiring acceptance. If it were to be understood that the promised performance is initially achieved and this subsequently changes, it would violate § 308 No. 4 BGB. In such a case, the customer would pay full fees for a service that does not even remotely approach the agreed-upon performance. Furthermore, contractual terms are to be interpreted according to the objective understanding of the recipient. When agreeing to a bandwidth of up to 18 Mbit/s, no reasonable average recipient would conclude that a permanent offering of merely around 30% of this corresponds to the contractually agreed performance.
Due to this significant deviation from the performance at least indicated and advertised, termination could also have been declared under Section 46 Paragraph 8 TKG. The deadline specified therein has been met.
In the court's view, the plaintiff would also have a right to terminate the contract in this case under the aspect of the frustration of contract (Wegfall der Geschäftsgrundlage), pursuant to § 313 BGB, as the promised performance is 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, according to the Munich Local Court, extraordinary termination of a telecommunications contract is possible if the actual connection speed of the internet access falls significantly below the stated maximum connection speed.
We are available to assist you with any questions regarding this topic and/or legal representation.
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law
Email: info@goldberg.de
