13 November 2002

Nicola Jansen

Length of a broadband cable lease

On 7th May 2002 the Court of Appeal of Brandenburg held that renting a broadband cable for a term of 25 years contravened Sect. 9 AGBG (German General Terms and Conditions Code, now Sect. 307 German Civil Code). While there are no specific statutory boundaries, it was held that an agreement with such a long duration is not fair and just as it interferes with the balance of rights and duties between the parties. Case law also dictates that the minimum contractual period is 12 years, therefore such an agreement must fall between these limits, as set by the courts in interpreting the Code.

Improper marketing by telephone

A decision of the Court of Appeal of Cologne on 23rd November 2001 found a supplier of telephone services to have infringed Sect. 1 UWG (the German Unfair Competition Code). The supplier had contacted its own customers through a call-centre and tried to induce the customers to change from one tariff to another, which was not solely, or particularly, in the customers´ interest.

‘Golden’ or ‘vanity’ numbers

A decision of the Federal Court of Justice on 21st February 2002, held that a lawyer using a so called “Golden Number”, where the telephone numbers correspond with letters on a keypad to spell a word, (e.g. “lawyer” or “law firm”), did not infringe competition law or principles of professional ethics (Sect. 43 b BRAO, Sect. 6 para. 1 BORA ).

A marketing call can be anticompetitive conduct if disguised as an opinion poll

A decision by the Court of Appeal of Stuttgart on 17th January 2002 held that an unsolicited marketing call to a non-business customer can be unacceptable in competition law, infringing Sect. 1 UWG (German Unfair Competition Code), where it is disguised as an opinion poll. Neither under the EU-Directive 97/7/EG, nor under the statute that recently incorporated this directive into German law, is it acceptable to act as if a telephone call is an opinion poll in order to find out a customer’s opinion on a, previously sent, printed advert.

General terms and conditions of mobile telephone service providers

According to the judgement of the Court of Appeal of Cologne on 11th January 2002, the following clauses within the general Terms and Conditions of a mobile telephone service provider infringe Sect. 9 resp. Sect. 11 Nr. 15 AGBG (German General Terms and Conditions Code, now Sect. 307 resp. Sect. 309 Nr. 12 German Civil Code):

  1. “I accept and confirm the general terms and conditions and the price list of X handed out to me.”
  2. “I agree that the above mentioned information will be used for advertising, client counselling, marketing research or data processing (cross out if necessary).”

Whereas the Court stated that the following clauses are in compliance with law:

  1. “I authorise my account managing bank to provide X with the information commonly given within the scope of a bank inquiry in order to do a credit assessment. This declaration may be cancelled at any time. The disclosure comprises common statements and comments on the clients economic circumstances, his credit standing and liquidity especially a check-up of the clients indications concerning accounting connection, EC card and/ or credit card.”
  2. “(As a customer of X your participation in the debit advice procedure is compulsory.) … I authorise X, to debit the amount invoiced at maturity directly from the beneath mentioned account by debit advice procedure.”

For more information, please contact:

David Kerr or Sally Trebble in London;
Frédérique Dupuis-Toubol in Paris;
Marjolein Geus in The Hague;
Jan Byok in Düsseldorf;
Richard Fawcett in Hong Kong;
Johan Tyden in Stockholm; and
Catherine Erkelens in Brussels.