The III. Civil Senate of the Federal Court of Justice (BGH), which is responsible for legal disputes concerning employment relationships, has ruled that a clause in the general terms and conditions of a telecommunications company restricting the use of Internet access to terminal devices that enable mobile use independently of a permanent wired power connection is invalid in a mobile communications contract.
The plaintiff is entered in the list of qualified entities pursuant to § 4 UKlaG. The defendant telecommunications company uses the following provision, among others, in its general terms and conditions for mobile communications contracts with Internet use:
"Mobile Internet access can/may only be used with smartphones, tablets, or other devices that enable mobile use independent of a permanent wired power connection (not, for example, in stationary LTE routers)."
The plaintiff claims that the defendant should refrain from using this clause or a clause with the same content in relation to telecommunications contracts with consumers.
Process history so far:
The Regional Court upheld the action. The Higher Regional Court dismissed the defendant's appeal.
The decision of the Federal Supreme Court:
The Third Civil Senate of the Federal Court of Justice dismissed the defendant's appeal, which had been allowed by the Court of Appeal.
The clause used by the defendant does not withstand a content review. It violates the freedom of choice of terminal equipment standardized in Article 3 (1) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of November 25, 2015, on measures regarding access to the open Internet and amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Regulation (EU) No. 531/2012 on roaming on public mobile telephone networks within the Union and is therefore invalid pursuant to Section 307 (1), (2) No. 1 of the German Civil Code.
Regulation (EU) 2015/2120, which is binding in its entirety pursuant to Article 288 (2) TFEU and directly applicable in every Member State, stipulates in its Article 3 (1) that end users of an Internet access service have the right to use the Internet access with terminal equipment of their choice. The scope of this freedom to choose terminal equipment does not depend on whether the Internet access service is based on a mobile communications contract, a fixed network contract or another type of contract. The point of reference for the freedom of choice of terminal equipment is the Internet access service and thus the access to the Internet provided by the service, irrespective of the network technology used and the terminal equipment used. When using this access, the end user is generally free to choose among the available terminal devices.
The freedom to choose the terminal device cannot be effectively waived. A provision along the lines of the clause used by the defendant, which excludes the use of certain terminal devices even though they are technically suitable for establishing an Internet connection via the mobile network, is therefore invalid.