# CJEU on Amendment Clauses in Telecommunications Contracts > The CJEU clarifies that Art. 105(4) of Directive (EU) 2018/1972 does not create an independent right to amend contracts unilaterally. Source: https://www.mtrlegal.com/en/cjeu-amendment-clauses-telecommunications-contracts/ · Language: en · Updated: 2026-10-29 --- The Court of Justice of the European Union (CJEU) has clarified that Art. 105(4), first subparagraph, of Directive (EU) 2018/1972 does not grant telecommunications providers an independent right to amend contractual terms unilaterally. Rather, the provision presupposes that such a right of amendment exists on another applicable legal basis and merely governs the associated right of termination available to end-users ([EuGH (Court of Justice of the European Union), judgment of 10 September 2026](https://eur-lex.europa.eu/./legal-content/AUTO/?uri=CELEX:62024CJ0669_SUM) – C-669/24). ## Dispute over an amendment clause in telecommunications contracts The decision arose from a legal dispute between the Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e. V. and Vodafone GmbH. The Bundesnetzagentur für Elektrizität, Gas, Telekommunikation und Eisenbahnen participated in the proceedings as an intervener. Vodafone used a clause in its general terms and conditions for certain electronic communications services under which the company was entitled to amend the contractual terms unilaterally in the exercise of reasonable discretion. The Verbraucherzentrale Bundesverband sought an injunction prohibiting any further use of this provision. ### Position of the Verbraucherzentrale Bundesverband The association argued that the clause infringed [§ 307(1)](https://www.gesetze-im-internet.de/bgb/__307.html), sentences 1 and 2, and § 308 no. 4 BGB (Bürgerliches Gesetzbuch, German Civil Code). Nor, it submitted, could the clause be justified by § 57(1), sentence 1, TKG (Telekommunikationsgesetz, German Telecommunications Act). Under § 308 no. 4 BGB, a provision in general terms and conditions is, in particular, invalid if it reserves the user’s right to alter or deviate from the promised performance, unless agreeing to such alteration or deviation is reasonable for the other contracting party, taking into account the user’s interests. The Verbraucherzentrale Bundesverband inferred from this that a unilateral right of amendment could only be validly agreed within these limits. ### Objections raised by the telecommunications provider Vodafone countered that the contested clause complied with § 57(1), sentence 1, TKG. It argued that this provision allowed providers to reserve a unilateral right of amendment in their general terms and conditions and constituted an exhaustive rule in this respect. As the clause merely reproduced the substance of the statutory provision, Vodafone submitted that a review of its substantive fairness under the specific rules governing general terms and conditions was precluded. Irrespective of this, there was no unreasonable disadvantage because the right was subject to reasonable discretion and customers were granted a special right of termination. Vodafone also argued that, in view of the harmonisation approach set out in Art. 101(1) of Directive (EU) 2018/1972, § 57(1), sentence 1, TKG had to be interpreted in conformity with the Directive. Accordingly, a unilateral right of amendment should not additionally be subject to the restrictions of § 308 no. 4 BGB. ## Proceedings before the German courts The Landgericht Düsseldorf (Düsseldorf Regional Court) dismissed the action for an injunction. In its assessment, the contested clause neither departed from nor supplemented statutory provisions. It was therefore not open to substantive fairness review under § 307(3) BGB. The Landgericht further stated that the clause would also be permissible if subjected to substantive fairness review. End-users were granted an extraordinary right of termination at no additional cost, which they could exercise before the announced amendments took effect. The court also considered that § 57(1), sentence 1, TKG presupposed the agreement of a unilateral right of amendment in general terms and conditions and, as a counterbalance, laid down the conditions under which the other contracting party could terminate the contract. The Verbraucherzentrale Bundesverband appealed against the decision to the Oberlandesgericht Düsseldorf (Düsseldorf Higher Regional Court). In its view, neither Art. 105(4), first subparagraph, of Directive (EU) 2018/1972 nor § 57(1), sentence 1, TKG established a unilateral right of amendment. Both provisions merely governed the legal consequences arising where a provider exercised a right of amendment existing on another legal basis. Vodafone applied for the appeal to be dismissed. ### Question referred by the Oberlandesgericht Düsseldorf The Oberlandesgericht Düsseldorf identified two possible interpretations of the provision of EU law. On the one hand, Art. 105(4), first subparagraph, of Directive (EU) 2018/1972 could be understood as a statutory authorisation for providers to amend contracts unilaterally. On the other hand, the provision could be interpreted as presupposing a right of amendment that already existed on another legal basis and as exclusively governing end-users’ right of termination. The Oberlandesgericht stayed the proceedings and requested the CJEU to clarify which of these interpretations was correct. ## Relevant provisions of EU and national law ### Right of termination under the European Electronic Communications Code Art. 105(4), first subparagraph, of Directive (EU) 2018/1972 concerns providers of publicly available electronic communications services other than number-independent interpersonal communications services. If such a provider gives notice of proposed amendments to the contractual terms, end-users may, as a general rule, terminate the contract at no additional cost. Under the provision, there is no right of termination where the amendments: - are exclusively to the benefit of the end-users, - are of a purely administrative nature and have no negative effect on the end-users, or - are directly imposed by EU or national law. The provider must notify end-users at least one month before the amendment and simultaneously inform them of their right of termination. The notification must be made in a clear and comprehensible manner on a durable medium. The right of termination may be exercised within one month of the notification; Member States may extend this period by up to three months. ### Implementation through § 57 TKG Under § 57(1) TKG, an end-user may terminate the contract without observing a notice period and without incurring costs if a provider of publicly available telecommunications services has reserved a unilateral right of amendment in its general terms and conditions and exercises that right. This provision likewise contains exceptions for amendments that are exclusively beneficial, are purely administrative with no negative effects, or are directly required by EU or national law. In addition, § 307 and § 308 BGB lay down the requirements applicable to general terms and conditions. § 307 BGB covers, in particular, unreasonable disadvantages contrary to the requirements of good faith, as well as unclear or incomprehensible provisions. § 308 no. 4 BGB limits clauses by which the user reserves the right to alter or deviate from the promised performance. ## Interpretation by the CJEU The CJEU based its assessment on the wording, regulatory context and purpose of the Directive. ### Wording governs only the consequences of a contractual amendment According to the Court, Art. 105(4), first subparagraph, of Directive (EU) 2018/1972 determines the consequences for end-users of an amendment proposed by the provider. The provision specifies when a right of termination at no additional cost arises and the exceptional circumstances in which no such right exists. By contrast, the provision does not itself provide a legal basis for the unilateral amendment. Nor does it lay down the conditions that a provider must satisfy in order to amend contractual terms unilaterally. It merely presupposes the existence of a corresponding power. Recital 275 confirms this classification. It states that amendments which are not exclusively in the end-user’s interest should, as a general rule, trigger a right of termination. This likewise does not confer any independent power of amendment on the provider. ### Classification as a provision protecting end-users Art. 105 of the Directive is headed “Contract duration and termination” and is located in the title concerning end-user rights. The provision governs various circumstances in which end-users may terminate their contracts and the conditions for exercising that right. According to the CJEU’s assessment, the provision does not concern providers’ rights. It therefore cannot be understood as authorising them to amend contractual terms unilaterally. Full harmonisation under Art. 101 of the Directive likewise extends only as far as Art. 105 governs the protection of end-users. It does not extend to a provider’s power to amend contracts unilaterally. Recital 257 also limits full harmonisation to the matters covered by the provisions on end-user rights. ### General consumer protection law remains applicable Recital 258 of the Directive clarifies that the EU-law requirements governing consumer contracts continue to apply to transactions involving electronic communications networks and services. These include, in particular, the requirements of Directive 93/13/EEC on unfair terms in consumer contracts. The annex to that Directive identifies terms that enable a trader to alter the contractual terms unilaterally without a valid reason specified in the contract as terms that may be regarded as unfair. For contracts of indeterminate duration, a reservation of the right to amend is possible under certain conditions, provided that the consumer is informed in reasonable time and is free to terminate the contract. The conditions under which a provider may reserve a unilateral right of amendment are therefore governed not by Directive (EU) 2018/1972, but in particular by Directive 93/13/EEC and the relevant national consumer protection provisions. Art. 8 of Directive 93/13/EEC also permits Member States to maintain or adopt more stringent protective provisions compatible with the Treaty on the Functioning of the European Union. ## Requirements for unilateral amendment clauses continue to apply The CJEU emphasised that a unilateral reservation of the right to amend may serve a legitimate interest of the provider. However, such a clause must continue to satisfy the requirements of good faith, balance and transparency arising, in particular, from Directive 93/13/EEC. Recital 276 of Directive (EU) 2018/1972 supports this interpretation. It states that the provisions on contract termination are without prejudice to other provisions of EU or national law concerning grounds for termination or the conditions under which the provider or end-user may amend the contract. A contrary interpretation would mean that providers could base unilateral amendments solely on Art. 105(4), first subparagraph, thereby circumventing general consumer protection requirements. In the Court’s view, this would be incompatible with both the Directive’s protective purpose and recital 276. ## Decision and scope of the judgment The CJEU held that Art. 105(4), first subparagraph, of Directive (EU) 2018/1972 does not establish an independent right for providers to amend contractual terms unilaterally. The provision presupposes a right of amendment based on other applicable provisions. If a provider exercises such a power, Art. 105(4), first subparagraph, merely governs end-users’ right of termination. The requirements of EU and national consumer protection law concerning the agreement and exercise of a unilateral right of amendment remain fully applicable. The Court therefore did not give a final ruling on the validity of the specific Vodafone clause at issue. That assessment is for the Oberlandesgericht Düsseldorf to make when the main proceedings are resumed. The decision on costs in those proceedings is likewise reserved for the German court. ## Further representative action before the OLG Hamm In addition to the Düsseldorf proceedings, a representative action brought by the Verbraucherzentrale Bundesverband against Vodafone companies is pending before the Oberlandesgericht Hamm (Hamm Higher Regional Court) under case no. I-12 VKl 1/23. According to the information in the Verbandsklagenregister, the proceedings have been pending since 13 November 2023 and the action has been formally pending before the court since 2 April 2024. The public notice was published in the register on 23 April 2024. The competent 12th Civil Division cancelled the hearing scheduled for 3 December 2025. The proceedings were stayed pursuant to § 148 ZPO (Zivilprozessordnung, German Code of Civil Procedure), applied by analogy, because preliminary questions concerning the interpretation of EU law had not yet been resolved. No final decision has been issued in these representative action proceedings. ## Significance for contract drafting The judgment draws a clear distinction between the legal basis for a unilateral contractual amendment and the right of termination triggered by such an amendment. Art. 105(4), first subparagraph, of Directive (EU) 2018/1972 addresses only the latter issue. Whether a telecommunications provider may amend contractual terms unilaterally continues to be governed by the other applicable provisions of EU and national law. Accordingly, the requirements of transparency, balance and good faith, as well as the limitations imposed by the law governing general terms and conditions, remain particularly relevant. Companies, investors and private individuals with questions concerning the scope of amendment clauses or contractual termination rights may contact MTR Legal Rechtsanwälte for [legal advice on contract law](https://www.mtrlegal.com/rechtsberatung/handelsrecht/vertragsrecht/).