The Federation of German Consumer Organizations (vzbv) sued Deutsche Telekom and won. The reason for the lawsuit was the special right of termination in the event of a price reduction. TECHBOOK explains what the verdict means for customers.
The TKG amendment came into force on December 1, 2021, which gives consumers, among other things, a right to a reduction in the case of internet access that is too slow. For example, if you receive 20 percent less than the contractually agreed service, you can reduce the payment by the same percentage. The prerequisite is corresponding proof of the defect, for example via the App of the Federal Network Agency. In one case, Deutsche Telekom granted a customer such a price reduction, but at the same time denied him a special right of termination. The vzbv has sued against this.
Telekom may not exclude special termination rights
According to the Federal Association of Consumers, a customer had complained to Telekom about his internet connection being too slow. He had booked the MagentaZuhause L tariff with VDSL 100 for EUR 44.99 per month. But the speed of 100 Mbit/s that was actually booked did not reach him in full. Telekom therefore granted him a reduction in the monthly basic fee of 5 euros. However, the written confirmation letter also contained a sentence that later gave rise to the lawsuit. Here Telekom wrote: “With the reduction, there is no special right of termination for the contract.”
In this case, Telekom ruled out a special termination after the price reduction had taken place, even if the speed remained permanently below the contractually agreed bandwidth. The vzbv saw this addition as misleading consumers about the rights to which they were entitled and therefore filed a lawsuit with the Cologne Regional Court.
The court gave the vzbv in its judgment (33 O 315/22) right. The exclusion of a special right of termination after a reduction in the basic fee by Telekom misrepresents the legal situation and is therefore misleading. Because with the introduction of Section 57 (4) of the Telecommunications Act, the legislature gave consumers the opportunity to “defend themselves against poor contractual performance”. In such cases, customers not only have a right to a reduction in the monthly basic fee, but also a special right of termination, provided that the requirements of §314 BGB are met. This paragraph states:
Section 314 Termination of continuing obligations for good cause
(1) Continuous obligations can be terminated by either party for good cause without observing a period of notice. An important reason exists if the terminating party, taking into account all the circumstances of the individual case and weighing the interests of both parties, cannot be expected to continue the contractual relationship until the agreed termination or until the expiry of a period of notice.
(2) If the important reason is a violation of an obligation under the contract, termination is only permissible after a period set for remedy has expired without success or after an unsuccessful warning. Section 323 (2) nos. 1 and 2 shall apply mutatis mutandis to the dispensability of determining a period for remedy and for the dispensability of a warning. The determination of a period for remedy and a warning are also unnecessary if there are special circumstances that justify the immediate termination after weighing the interests of both parties.
(3) The beneficiary can only give notice of termination within a reasonable period of time after becoming aware of the reason for the termination.
(4) The entitlement to claim damages is not excluded by the termination.
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Verdict is clear
The judgment thus confirms that customers not only have the right to reduce the price if a provider cannot guarantee the booked Internet speed. As in the case of Telekom, you also have a special right of termination, which you can use to terminate your contract extraordinarily. “A reduced data transmission rate does not become a contractual service due to a price reduction,” says vzbv.
In one point, however, the vzbv was unsuccessful before the Cologne Regional Court. According to the judgment, Telekom’s statement that the special right of termination no longer applies does not constitute a verifiable contractual condition. Both parties have appealed the judgment to the Cologne Higher Regional Court (6 U 76/23).