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Subject of the decision: freedom to choose terminal equipment in the mobile communications sector
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On 9 May 2023, in case III ZR 88/22, the Federal Court of Justice (BGH) addressed the legal scope of freedom to choose terminal equipment in mobile communications contracts including internet use. The central question was whether mobile network operators may require their customers to use exclusively certain hardware provided by the operator itself to access mobile internet.
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Background and procedural history
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The proceedings were based on an action brought by a consumer protection association against a telecommunications company. Under certain mobile communications contracts, the company provided SIM cards that were configured so that—through technical restrictions—mobile internet access was possible exclusively with the provider’s terminal equipment. The claimant considered this to be a violation of Section 11 (1) sentence 1 TKG, which guarantees end users the right to choose terminal equipment.
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After the Regional Court at first instance upheld the action, the appellate court confirmed the judgment. The defendant mobile network operator then lodged an appeal on points of law with the BGH.
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Legal considerations of the BGH
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Scope of application of Section 11 (1) sentence 1 TKG
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The BGH clarified that Section 11 (1) sentence 1 TKG is intended to ensure that end users, in principle, have the right to use their own telecommunications terminal equipment at the respective connection, provided that it meets the relevant technical requirements and approvals. The purpose of this provision is, in particular, to prevent restrictions on market access and to promote freedom of competition in the terminal equipment market.
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Court’s decision
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In the specific case, the BGH affirmed a violation of the right to choose terminal equipment. The technical restriction imposed by the defendant company—namely that, with the SIM cards provided in each case, mobile internet access could be used only via certain terminal equipment provided by the operator—expressly ran counter to the statutory purpose.
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The Court explained that Section 11 (1) sentence 1 TKG applies not only to fixed network connections, but equally to wireless access technologies—such as mobile communications. A selective restriction of usability through technical measures is therefore impermissible unless there are compelling security-related or regulatory reasons to the contrary.
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Relevance of the decision for mobile network operators
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With this decision, the BGH specified the requirements for the technical and contractual design of mobile communications services with internet functionality. Mobile network operators are accordingly obliged to enable customers to access mobile internet using self-selected, compatible terminal equipment, provided that no statutory exceptions apply. Restrictive contract structures or technical protective measures in favour of proprietary hardware violate applicable telecommunications law.
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Implications for market participants
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For companies in the telecommunications sector, the BGH ruling results in a clear obligation to review existing business models and technical solutions for compatibility with the right to choose terminal equipment. Restricting usability to the respective provider’s terminal equipment may constitute an impermissible interference with competition and may entail consequences under competition law.
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Companies, investors and other market participants who have questions regarding the subject areas of telecommunications contracts, technical access restrictions or digital infrastructure requirements can find further information and individual legal support from MTR Legal via the legal advice in IT law.
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