OLG: Minimum contract term may not exceed two years for fiber optics
The Hanseatic Higher Regional Court has decided this: The minimum term for fiber optic services begins upon conclusion of the contract - not upon connection.
The fiber optic network often has to be built after the contract is signed. When should the contract term begin?
(Image: juerginho/Shutterstock.com)
The two-year minimum contract term for Internet connections for consumers also begins with the conclusion of the contract – not only when the service actually begins. This was decided by the Hanseatic Higher Regional Court (OLG) in proceedings brought by the North Rhine-Westphalia Consumer Association (VZ NRW).
As many fiber optic providers only start with the expansion once they have contractually bound a certain number of customers in an area, some time can pass between the conclusion of the contract and the activation of a fiber optic connection. In this case, VZ NRW took legal action against Hamburg-based Deutsche GigaNetz (DGN). The company states in its General Terms and Conditions: “The contract term begins with the activation of the customer's DGN connection.”
“Consensus of opinion”?
DGN refers to Section 56 of the German Telecommunications Act (TKG). This stipulates that the “initial term” of a contract between a consumer and a provider of publicly accessible telecommunications services may not exceed 24 months. The DGN reads from this that the “consensus view” remains that the contract term begins at the time at which the provider actually makes the service available according to the agreement. Otherwise, the company would be forced to pass on the costs for the house connection to the end customer.
According to VZ NRW, however, the clause violates Section 309 No. 9 of the German Civil Code (BGB), as it could lead to a binding contract term of more than two years. The BGB standard cited declares such general terms and conditions to be invalid. The consumer protectors believe that competition would otherwise be impaired, as consumers would be “unavailable” to the market for more than 24 months. In the TKG, the legislator only wanted to close protection loopholes if terms were agreed individually. The long duration until connection activation claimed by DGN illustrates precisely why a 24-month commitment from the conclusion of the contract must be the maximum limit.
DGN does not accept the ruling
In the judgment now published on December 19 (case no.: 10 UKl 1/24), the OLG states that Section 309 BGB is authoritative and is not superseded by Section 56 TKG as a special provision. The Federal Court of Justice (BGH) had already measured a similar contractual agreement against the BGB standard in 2021. Initial minimum contract terms that exceed 24 months are inadmissible.
Videos by heise
As the Higher Regional Court of Cologne recently ruled differently, the Hamburg judges allowed an appeal to the BGH. Deutsche Giganetz now also intends to take this route. The network operator continues to assume that the TKG takes precedence over the BGB, a spokesperson explained to heise online. According to the DGN spokesperson, it is permissible “that the minimum contract term only begins when the connection is activated”. The decisive difference between fiber optic and other service contracts is that the connection must first be built. The costly overall project of a nationwide fiber optic expansion requires planning and legal certainty for all parties.
VZ NRW describes the ruling as groundbreaking, as it means that providers can no longer pass on the risk of the expansion period to consumers. Fiber optic contracts are often concluded before the start of the network expansion – often in the context of doorstep selling. Laying the lines can then take more than a year.
(ds)
