On 6 July 2016, the Berlin Regional Court ruled (case reference: 15 O 314/15) that an automatic change to the internet tariff – without the customer’s express declaration – is anti-competitive. The amended contracts were null and void due to the lack of a declaration of acceptance.
Changing the Internet tariff without the customer’s consent
A telecommunications company offered its customers an internet connection at a monthly price of €14.99. In May 2015, the company discontinued this tariff and subsequently informed all customers: With the new tariff, it would be possible not only to use the internet connection, but also to make unlimited telephone calls. However, there is a monthly charge of EUR 19.99 for this additional service. The switch to the new Internet tariff is automatic unless the customer objects. It was not possible to remain on the old tariff
The consumer advice center in Berlin filed a lawsuit against this approach under competition law.
No added value for additional telephone connection
According to the Berlin Regional Court, the telecommunications company’s actions constitute a breach of Section 312a para. 3 BGB (German Civil Code), insofar as there is no express consent from the customer. It cannot be assumed that customers who have previously only used an Internet connection also want to use a telephone connection. Most customers already have a telephone connection with another provider. This means that the additional service provided by the telecommunications provider does not usually add any value for customers.
The imposed added value also did not represent an appropriate consideration for the price increase of 5 euros. This price increase for the same service is inadmissible without the express consent of the consumer.
The letter stating that the new contract would be concluded even without the express consent and that there was only a right of revocation deceived customers about the legal situation (Section 5 (1) sentence 2 no. 7 UWG). This is because the customer is given the impression that a new contract will be concluded without an objection.
Obligation to send a letter of amendment
The telecommunications company is obliged to remedy the consequences of its unfair conduct by sending an explanatory letter to the affected customers. In the present case, the disruption must be remedied by informing the affected customers in writing.