What is it all about?
The case
The parties disputed the competition law admissibility of a blocking threat for a mobile phone connection. The applicant is a registered consumer protection association. The defendant offers mobile phone services. One of her customers sent her an invoice for around € 1,300.00, which included, among other things, the item “GPS-foreign connection volume” with more than € 1,250.00.
After the customer had objected to the amount of the invoice, the defendant referred to a test report of the network operator which it had obtained in order to justify its claim and granted a goodwill credit equal to half the amount. She urged the remaining demand. At the same time, it pointed out that, in the event of non-timely payment, it reserved the reservation of blocking the mobile phone connection.
The applicant considers the defendant’s action to be anti-competitive. The landgericht dismissed the action. The appeal against this was successful before the OLG.
The decision
The defendant may not threaten to block the connection to defaulting consumers if the claim made for deduction of claims complained of by the consumer in form and on time amounted to less than € 75.00, the OLG ruled.
The announcement of the block constitutes an aggressive business practice within the meaning of Section 4a UWG, which is likely to cause the customer … to make a business decision that she would not have made otherwise
, the OLG explains in more detail.
The letter was an ‘unacceptable influence’ since it was capable of
‘to completely eclipse the rationality of the decision of the consumers addressed’.
Business conduct is ‘aggressive’ in the terms of Paragraph 4a(4) of the 1 p. 2 UWG, where there is a threat of legally inadmissible acts. This included the threat of breach of contract. In any event, in cases of legal doubt, the legal view held (in this case the admissibility of a block) must not be presented as established. ‘The exercise of pressure by threatening a legally dubious measure may significantly limit the ability of consumers to make an informed decision and thus fulfil the offence of undue influence where such threat is compulsive. admissibility is obscured’. That’s how it’s here.
The announced threat to block the mobile phone connection in the event of non-timely payment must also be classified as a significant “evil”. Consumers are generally in urgent need of their mobile phone connection. Many did not have a landline and handled all their communications via the mobile phone connection.
The threatened block was also legally inadmissible. The requirements for a lock were based on Section 45k TKG. The customer was not in arrears with an amount of at least €75, since the requested claim had to be reduced by the amount complained of. The customer also objected sufficiently to the claim.
Complaints should be taken into account if the customer presents external circumstances in such a way that
‘that, from an objective point of view, the objections may be presented as comprehensible and may give rise to doubts as to the lawful establishment of the link’.
In this case, the unusual level of the claim, even in comparison with previous periods, represented an external circumstance which casts doubt on the correct recording of the volume of the interview. Further substantiation could not be required of the customer, since they did not have access to the collection data.
