In a landmark ruling, the Federal Court of Justice ruled against O2 and in favor of end customers. WLAN routers may also be used in mobile rates – contract clauses that prohibit this are invalid.
Clause of O2 ineffective
O2 has included a clause in its mobile phone contracts with unlimited data volume that prohibits the use of stationary WLAN routers in the corresponding network. The German Federation of Consumer Organizations had filed a lawsuit against this provision, as it sees it as a violation of fundamental consumer rights. The Federal Court of Justice has now followed this line of argument in its ruling on the case: Under EU law, end customers may not be restricted in their freedom to use terminal equipment. Consequently, O2’s clause is invalid and the use of WLAN routers must be permitted in all mobile rates. The ruling is likely to set a precedent for similar disputes with other mobile providers in the future, some of which rely on similar clauses. A change in the terms of contract will thus be unavoidable.
The justification of the ruling literally states: “The clause used by the defendant does not stand up to a content review. It violates the freedom of choice of terminal equipment standardized in Article 3 (1) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of November 25, 2015, on measures regarding access to the open Internet and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No. 531/2012 on roaming on public mobile telephone networks within the Union, and is therefore invalid pursuant to Section 307 (1), (2) No. 1 of the German Civil Code.”
The Landgericht München had already ruled in the same way in 2021.