Anyone who has already taken out a mobile phone contract is familiar with how providers try to keep or win back customers after a contract has been terminated. Advertising calls shortly before the expiry of the terminated contract are not uncommon, but rather customary in the industry.
However, a subsidiary of Telekom Deutschland GmbH has now gone much further. With a clause in its general terms and conditions, it attempted to obtain consent to continue to inform and advise customers personally via all channels – such as telephone, email, SMS or MMS – in the future. However, this went too far for the judges of the Higher Regional Court of Cologne, which is why they declared the clause invalid (judgment of 02.06.2017 – 6 U 182/16).
GENERAL TERMS AND CONDITIONS: Consent clause through opt-in procedure
The consent clause was presented to the customer when the contract was concluded. By means of a simple “opt-in procedure”, the company obtained the customer’s consent to provide individual advice until the end of the calendar year following the end of the contract. A later revocation was possible at any time.
I would like to be personally informed and advised about new offers and services from Telekom Deutschland GmbH by e-mail, telephone, SMS or MMS.
I agree that my contract data from my contracts with Telekom Deutschland GmbH may be used by Telekom Deutschland GmbH for individual customer advice until the end of the calendar year following the termination of the respective contract. My contract data is the data required by Telekom Deutschland GmbH for the fulfillment of the contract […] and provided voluntarily.
Vzbv sees a breach of competition in the general terms and conditions of the Telekom subsidiary
The German Federationof Consumer Organizations(vzbv) considered the clause to be an unreasonable disadvantage to consumers and sued the company. In their opinion, it was not only inadmissible to combine several contact options in one clause. Rather, the extension of the contact period beyond the actual end of the contract was inadmissible.
Illegal general terms and conditions originate from Telekom subsidiary
The Higher Regional Court of Cologne has now upheld the vzbv’s complaint and declared the GTC to be inadmissible. It was a violation of § 307 para. 1 sentence 1 BGB. In particular, the T&Cs were inadmissible because they unreasonably disadvantaged the provider’s customers contrary to the principle of good faith. § Section 7 para. 2 No. 2 UWG also protects the customer from harassing advertising by telephone calls without sufficient effective consent.
Consent not possible due to the lack of specificity of the clause
And it was precisely this consent that could not be obtained on the basis of the printed clause. In the opinion of the Cologne judges, this was not sufficiently specific. It was not clear to the customer what exactly was meant by “individual customer advice“. In addition, the provision still allowed contact to be made almost two years after the end of the contract. It can be assumed that, in the age of the media, the customer already has a contract with a competing provider.
The judges left open the question of whether the clause was also inadmissible with regard to the summary of contact options. This question can now be decided by the BGH as part of an appeal. The appeal was allowed. The ruling is therefore not yet legally binding.