GER: Choice of End Devices Cannot Be Limited

Jul 14, 2023 Benn-Ibler Rechtsanwälte

Preventing internet access through certain mobile end devices such as LTE routers cannot legally be limited by clauses used in mobile phone contracts, as this would restrict the freedom of device choice, according to the German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH).

The German Federal Association of Consumer Centres (Bundesverband der Verbraucherzentralen) had brought an action against a telecommunication company. In its General Terms and Conditions, the company had used the following clause:

‘Mobile internet can/may only be used with smartphones, tablets, or other devices that allow mobile use independent of permanent wired power connections (such as stationary LTE routers).’

The plaintiff demanded that the defendant refrain from using this clause or a clause with a similar content in respect to telecommunications contracts with consumers. The plaintiff considered the clause to be an infringement of the freedom of choice of device under European law. Consumers should not be forced to use the internet exclusively with a tablet or smartphone.

The BGH ruled as follows:

The clause used does not stand up to a content review. It violates the freedom of choice regarding terminal devices as standardised in Article 3(1) of Regulation (EU) 2015/2120, and is therefore ineffective.

The scope of this freedom of choice regarding terminal equipment does not depend on whether there is a mobile telephone contract, a fixed network contract or another type of contract on which the internet access service is based. The decisive factor is therefore the internet access service. This means that choice is independent of the network technology used and the terminal equipment used. When using this service, end-users must be able to choose freely between available terminal devices.

The freedom of choice regarding terminal devices can therefore not be effectively waived in general terms and conditions. The clause used by the defendant to prohibit the use of connected devices is therefore invalid.

BGH, III ZR 88/22 (4.5.2023)