Germany’s Federal Court of Justice (BGH) has ruled that mobile communications providers cannot dictate to customers which devices they can use to access the internet. The decision affirms a previous judgment of the Munich Regional Court from earlier this year, which prohibited a clause in a contract that banned the use of mobile internet access with devices featuring a wired power connection. The Federal Association of Consumer Centers (vzbv) won the lawsuit, and, in addition, the Munich Higher Regional Court rejected the provider’s appeal against the judgment. The case concerned Telefónica Germany’s O2 tariff.
The mobile-phone provider had attempted to restrict the use of its tariff in a specific location-based context, including home routers, with which it believed presented an unfair competitive scenario. However, it lost the case because the BGH ruled that such contractual clauses infringed upon the freedom of choice of the end device and were therefore invalid. The court emphasised that when using internet access, the end user can freely choose from any available device. The vzbv is conducting similar proceedings against other telecommunications providers, including Vodafone and Mobilcom-Debitel. In the first instance, Deutsche Telekom has already been sued for injunctive relief.
Telefónica responded, saying that it would analyse the BGH’s reasoning in detail but that no changes would be enacted for customers, as it isn’t currently using the relevant clauses in its terms and conditions. It stated that the regulation’s basic idea was to offer customers tailored tariffs according to their specific usage behaviours, using a type of device that corresponds to the respective usage scenario. The vzbv hailed the BGH’s ruling as a significant consumer decision, stressing that it allowed customers freedom of choice for internet access devices and ensured vendors could not limit choice in their small print.
