BGH interprets fiber optic contract duration in favor of consumers

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The Federal Court of Justice (Bundesgerichtshof, BGH) is clarifying a question that consumers and telecommunications providers repeatedly dispute: When does the legally permissible minimum contract duration begin? In a legal dispute between the consumer association of North Rhine-Westphalia and Deutsche Giganetz, the III. Civil Senate of the Federal Court of Justice (BGH) declared a clause in the provider's General Terms and Conditions unlawful on Thursday. According to which, the contract duration should only begin with the activation of the connection and not upon conclusion of the contract. The BGH thus rejected Deutsche Giganetz's appeal against the lower court's ruling (File No. III ZR 8/25).

However, such a clause could extend the period between contract conclusion and termination beyond the maximum duration of two years permitted by §309 No. 9 of the German Civil Code (Bundesgesetzbuch, BGB) for goods and services delivery contracts, the judges found. The Hanseatic Higher Regional Court had ruled accordingly in January 2025. The highest court's ruling was eagerly awaited, not least because the BGH had not definitively decided until the last moment whether there were special factors in fiber optic expansion that would exceptionally allow for a deviation.

Fiber Optic Expansion Specifics

In the context of fiber optic expansion, contracts are often concluded long before the actual start of service. Companies market connections even before construction work begins. For economic expansion, a minimum number of orders is necessary, and the expansion itself usually takes at least months. "The investment and construction phases can take several months to over a year, and the reasons for this are often not with the network operators, but with the permitting authorities or other circumstances," describes Frederic Ufer from the Association of Providers in the Digital and Telecommunications Market (VATM) the reason for delays from the provider's perspective.

For customers, there would be the risk of being contractually bound to a provider for unforeseeable periods -- without any possibility of influence. For providers, on the other hand, there is the risk that the actual contract duration after connection may be short -- and the customer is gone again shortly after the start of payments associated with the service.

The judges at the Federal Court of Justice saw, according to the court's press release and parties to the proceedings, no reason to interpret the provisions for contract law differently. Even if there are special features in the fiber optic market, the Telecommunications Act (TKG) does not indicate that the 24-month rule should be deviated from. The BGH Senate in Karlsruhe also saw no reason for a referral to the European Court of Justice whether the maximum duration, which is linked to the time of contract conclusion in Germany, is permissible.

This is a problem for providers. "The BGH ruling is anything but investment-promoting, because reliable framework conditions are crucial for self-financed fiber optic expansion, as network operators incur significant upfront costs," says Frederic Ufer from VATM. "If the contract duration shortens independently of the actual commissioning, it directly affects the profitability of investments and planning security during the expansion."

Consumer advocates advise checking all contracts

Customers of all providers with corresponding contract clauses should check them promptly, advises Felix Flosbach from the consumer association NRW. The ruling, he explains, only applies directly to the parties to the proceedings. "However, the court's fundamental finding also applies beyond that." All consumers who have concluded a contract and wish to terminate it can rely on the fact that the maximum duration began with the conclusion of the contract.

Anyone who is unsure when exactly they concluded their contract should check the order confirmation. Those who have already canceled in advance, their cancellation remains valid, even if providers have rejected this in the past-- a reminder with reference to today's ruling can provide the necessary emphasis, according to Flosbach. The consumer association NRW provides sample letters for cancellation notices on its website.

Switching providers often still difficult with fiber optic providers

However, the consumer advocate sees further need for action regarding the main problem after a successful fiber optic connection termination. Because so far, it is by no means guaranteed that another provider will offer a connection for fast access. And adequate alternatives to fiber optics are not available everywhere. "We have consumers where the expansion is stalling and there are actually alternatives meanwhile," explains Flosbach. But the market is unfortunately only opening up slowly: "For us, regulation, either politics or the Federal Network Agency, would have to ensure that there are also actual possibilities for switching."

However, most companies that have laid fiber optic connections strictly refuse an obligation to connect other providers to their own infrastructure for an appropriate fee. Whether there is even a legal basis for such an obligation is also questionable -- so if it were desired, there could be a need for regulatory action.

With today's ruling, nationwide expansion will certainly not become easier, says provider representative Frederic Ufer. He wishes that the specific peculiarities of fiber optic expansion would be taken into greater consideration in future legal and regulatory frameworks. Currently, expansion plans are being intensively discussed between providers and the Federal Ministry for Digital Affairs.

(vbr)