Higher Regional Court: Flat fee for replacement SIM card is unlawful
Mobile phone providers may not charge additional costs for issuing a replacement SIM card without restriction. This was decided by judges in Frankfurt.
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Legal success for the German Federation of Consumer Organizations (vzbv): Mobile phone providers are not allowed to charge a fee for issuing a replacement SIM card in every case. This was decided by the Higher Regional Court (OLG) in Frankfurt am Main following a vzbv lawsuit against 1&1 Drillisch Online. According to the price list, the operator of brands such as Simplytel charged €14.95 for a replacement SIM card in its own mobile phone tariffs. No exceptions were provided for. In a further clause, however, the company itself reserved the right to exchange the corresponding access modules for replacement cards for technical or operational reasons. The OLG has now ruled that the associated uncertainties put customers at an unreasonable disadvantage.
The provisions objected to by the vzbv are to be understood by the average customer in such a way that he "must also pay the fee of 14.85 if a non-functional SIM has been provided to him by the mobile service provider through no fault of his own, and he therefore reorders a SIM", according to the ruling now published on July 18 (Ref.: 1UKI 2/24). This means that Drillisch is inadmissibly passing on the cost of fulfilling its own obligations to its contractual partners. The later reference to the customer request not explicitly named in the clause remains too vague. This is because the customer may also have to take the initiative in cases in which its contractual partner would already have to take action due to its own obligation.
Mobile phone providers are often not allowed to charge extra
Drillisch does not make it clear in the General Terms and Conditions that changing the card for technical or operational reasons is an obligation that only affects the mobile service provider and thus "does not take place at the customer's request", the judges criticize. Overall, the disputed fee is "incompatible with fundamental principles" of the German Civil Code (BGB) and unreasonably disadvantages the contractual partners. It also contradicted the principle of transparency. However, the OLG has allowed an appeal to the Federal Supreme Court, meaning that the ruling is not yet legally binding. This is because the matter is of fundamental importance and has not yet been decided by the highest court.
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Drillisch, on the other hand, argued that the provision of a replacement SIM card is an additional service beyond its own "main service obligations". It would only be provided in response to a corresponding order from a customer, and only in the customer's interest. Whether a fee is charged for this depends solely on the mobile phone contract. However, the replacement of a SIM card or an E-SIM after a device change or in the event of a warranty claim for the mobile device relates to the obligations arising from the hardware purchase contract. No additional costs would therefore be charged for this.
Jana Brockfeld, legal advisor at vzbv, was pleased with the court's clarification that mobile customers are entitled to "a functioning SIM card without additional costs". Often, issuing a replacement is not a special service for which a company is allowed to charge extra.
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