Mobile service providers can not require their customers that they use a tariff for internet access only with certain advantages. The district court of munche i decided against a lawsuit of the federal association of consumer centers (vzbv) against telefonica germany. At the tariff "o2 free unlimited" with unlimited data volume, the provider had allowed internet usage only for terminates that make a mobile use independently of a wired power connection – stationary lte routers were excluded.
According to the judgment published by vzbv (az.: 12 o 6343/20) of 28. January violates this barrier against the eu regulation for an open internet of 2015, with which the european legislator has stipulated the network neutritat. This is the right to use the right to use your choice of your choice via your internet access service.
With the specification of telefonica, according to the judges, numerous gates that are not used for internet access and liberated. This is not to be agreed with the basic idea of the final freedom of contents. This "first of all and prohibits contractual deviations at the expense of the customer". The controversial clause is ineffective, because they inappropriate consumers as a contractual partner inappropriate disadvantage.
The detention of the defendant, which existed in the supply of internet access only for mobile access, because it was a tailored tariff not shared the court. This view on a – ultimately willing-committed subdivision of the offer of internet access services in mobile and stationar "product world". But it is ultimately a general contract via the use of an online access.
"Fubnote of a price list"
The integration of wired terminals on the so-called tethering is not sufficient to the decision, as it is a "with significant additional effort in the form of another device connected solution" handle. The judges also wondered that the clause "in a fubnote to a price list" find. This appears for such executions on the contractual performance "at least unusual".
Telefonica had argued that a classification of the offer in such different portfolios was marketable. The difference between mobile and stationary access fabrication is aimed at different customer financing. The tariffs in which the claimed clause is used are intended for a mobile, local useful usage and were offered to customers for exactly this purpose with different prices. The regulation also aims only on the network operator not to present the customer’s use of a specific, possibly provident-specific device.
Provider in court
The verdict is not yet legally legislative, since telefonica against the decision to appeal at the higher regional court munchen (az.: 29 u 747/21). A request from our site to the grunden for this step and after a comment on the decision of the landgericht answered the company on friday. Due to similar clauses, the vzbv also sued telekom germany, mobilcom-debitel and vodafone. Course decisions are not yet available in these procedures.