Ruling against 1&1: Customers may insert SIM card into modem

Contents

Consumer advocates are celebrating a victory against one-sided contract terms imposed by the mobile provider 1&1 Telecom. The Koblenz Higher Regional Court (OLG) has declared seven of its general terms and conditions (AGB) clauses unlawful and invalid (File No. 2 U 603/24, not legally binding). For example, 1&1 wrongly prohibited the use of stationary devices that are not a 1&1 product. Furthermore, the provider automatically extended contracts by twelve months. The latter is a clear contradiction to the Telecommunications Act (TKG), which, in Section 56, stipulates the right to terminate at any time with one month's notice after the minimum contract period has expired.

Another clause in the general terms and conditions (AGB) states that invoices are uploaded to the customer account on the 1&1 website. They are to become due “upon access.” The OLG considers this to be doubly unlawful: Firstly, access to the invoices is presumed. Such presumptions are expressly prohibited (Section 308 No. 6 BGB). Secondly, it is not apparent to laypersons when “access” is to be considered effective. This makes the clause non-transparent, which Section 307 (1) Sentence 2 BGB punishes with invalidity. The latter two clauses had been deemed permissible by the first instance court, the Koblenz Regional Court (LG, File No. 3 O 4/23). The appeal filed against this by the plaintiff, the Federation of German Consumer Organizations (vzbv), was therefore successful.

1&1 fails with appeal

The LG had already revoked five further clauses. 1&1 appealed against two of these revocations, but unsuccessfully:

1&1 wanted to continue to be allowed to declare oral commitments to customers, which are not confirmed in text form, as generally invalid. However, the German Civil Code (BGB) grants individual contract agreements precedence over general terms and conditions in Section 305b. Therefore, such a general exclusion of oral agreements goes too far.

The TKG, in Section 57, permits unilateral contract changes by the telecom operator to the detriment of the customer if this is provided for in the general terms and conditions (ABG). 1&1 attempted to implement this as follows: “1&1 has the right to change the contract terms at its reasonable discretion and (sic) if the balance of the contract is thereby altered to more than an insignificant extent.” The court considers this to be non-transparent, which is not only due to the misplaced “and.” More significant is the “string of indeterminate legal terms,” namely “reasonable discretion,” “balance,” and the doubly connecting “not only an insignificant extent.” Furthermore, it is unclear whether the term “contract terms” refers only to the AGB or the entire contract. Thus, the clause is incomprehensible and invalid due to non-transparency.

SIM card also allowed in modems

Regarding three further clauses, 1&1 accepted the prohibition by the LG Koblenz. Therefore, the legal reasoning is not included in the judgment of the OLG Koblenz. The reasoning of the LG has not been published.

These three legally binding invalid clauses are an exclusion of dispute resolution proceedings before a consumer arbitration board, the condition of transferring a contract to a third-party subject to the prior written consent of 1&1 Telecoms, and the modem prohibition: Unsurprisingly, 1&1 customers are not allowed to misuse the SIM card. Surprisingly, 1&1 has declared it abusive to install the SIM “in stationary facilities, of whatever kind, unless the stationary facilities are a product of 1&1, which explicitly permits this.”