Consumer advocates claim success against the one-sided contractual conditions of the mobile operator 1&1 Telecom. The Koblenz Higher Regional Court (OLG) has declared seven general terms and conditions clauses to be inadmissible and ineffective (ref. 2 U 603/24, not legally binding). For example, 1&1 wrongly prohibited the use of stationary devices that are not 1&1 products. The provider also automatically extended contracts by twelve months. The latter is a clear contradiction to the Telecommunications Act (TKG), which in paragraph 56 provides for the right to terminate at any time with one month’s notice after the minimum contract period has expired.
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Another clause of the General Terms and Conditions (GTC) explains that invoices are uploaded to the customer account on the 1&1 website. They should become due “with access”. The Higher Regional Court considers this to be doubly unlawful: on the one hand, receipt of the invoices is fictitious. Such fictions are expressly prohibited (Section 308 Number 6 BGB). On the other hand, it is not clear to laypeople when “access” should be effective. This means that the clause is non-transparent, which Section 307 Paragraph 1 Sentence 2 BGB punishes with invalidity. The first instance, the Koblenz Regional Court (LG, Ref. 3 O 4/23), considered the latter two clauses to be permissible. The plaintiff’s appeal against this was therefore successful.
1&1 fails on appeal
The LG had already repealed five further clauses. 1&1 appealed against two of these repeals, but without success:
1&1 wanted to continue to be able to generally declare verbal promises to customers that were not confirmed in text form as invalid. But the Civil Code (BGB) even grants individual contractual agreements priority over general terms and conditions in paragraph 305b. Therefore, such a general exclusion of oral agreements goes too far.
The TKG allows unilateral contract changes by the telecom operator to the detriment of the customer in paragraph 57 if this is provided for in the General Terms and Conditions (ABG). 1&1 tried to implement this as follows: “1&1 has the right to change the contractual conditions at its reasonable discretion and (sic) provided that this changes the balance of the contract to a more than insignificant extent.” The court considers this to be non-transparent, which is not just due to the stray “and”. The “series of indefinite legal terms”, namely “equitable discretion”, “balance” and the doubly unifying “not only insignificant measure” are of greater importance. It is also unclear whether the term “contractual conditions” refers only to the general terms and conditions or the entire contract. The clause is therefore incomprehensible and ineffective due to a lack of transparency.
SIM cards are also allowed in modems
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With regard to three further clauses, 1&1 accepted the ban by the Koblenz Regional Court. Therefore, the legal justifications are not included in the judgment of the Koblenz Higher Regional Court. The LG’s reasons have not been published.
These three legally invalid clauses are an exclusion from dispute resolution proceedings before a consumer arbitration board, the linking of the transfer of a contract to a third party to the prior written consent of 1&1 Telecom, and the modem ban: Unsurprisingly, 1&1 customers are not allowed to misuse the SIM card. What is surprising is that 1&1 has declared it abusive to install the SIM “in stationary facilities of any kind, unless the stationary facilities are a 1&1 product which explicitly allows this.”
