Verdict: Mobile network providers must ensure freedom from devices

Mobile phone providers are not allowed to tell their customers that they can only use a tariff for internet access with certain devices. This was decided by the Regional Court of Munich I following a lawsuit brought by the Federal Association of Consumer Organizations (vzbv) against Telefónica Deutschland. With the “O2 Free Unlimited” tariff with unlimited data volume, the provider only allowed Internet use for end devices that enable mobile use independent of a wired power connection – stationary LTE routers were expressly excluded.

According to the vzbv now published judgment (Az .: 12 O 6343/20) of January 28th, this barrier violates the EU regulation for an open internet of 2015, with which the European legislator has stipulated net neutrality. This grants consumers the right to use devices of their choice via their Internet access service.

According to the judges, with the stipulation from Telefónica, numerous devices that are suitable and common for Internet access cannot be used. That is not compatible with the basic idea of ​​the freedom of end devices. This applies “initially without restrictions and forbids contractual deviations to the detriment of the customer”. The controversial clause is ineffective because it unreasonably disadvantages consumers as contractual partners.

The court did not share the view of the defendant that the contractual obligation consists in the provision of Internet access only for mobile devices because it is a tariff that is tailored to it. This view is based on an – ultimately arbitrary – division of the range of Internet access services into mobile and stationary “product worlds”. Ultimately, however, it is a general contract for the use of online access.

The inclusion of wired end devices via so-called tethering is not sufficient, according to the resolution, since this is a “solution that involves considerable additional effort in the form of an additional device”. The judges were also surprised that the clause “is in a footnote to a price list”. This appears “at least unusual” for such statements on the main contractual service.

Telefónica had argued that dividing the offer into such different portfolios was customary in the market. The difference between mobile and stationary access offers is aimed at different customer needs. The tariffs in which the disputed clause is used are intended for mobile, location-independent use and are offered to customers at different prices for precisely this purpose. According to the network operator, the regulation only aims to require customers to use a very specific, possibly provider-owned device.

The judgment is not yet final, as Telefónica has appealed against the decision to the Munich Higher Regional Court (Az .: 29 U 747/21). On Friday, the company did not respond to a request from heise online about the reasons for this step and after commenting on the decision of the regional court. The vzbv has also sued Telekom Deutschland, mobilcom-debitel and Vodafone because of similar clauses. Court decisions have not yet been made in these proceedings.


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