a) The clause in terms and conditions of a mobile operator, after one for transfer of SIM card “Pledge” in the amount of 29,65 € is charged, as the “Liquidated damages” will be retained, fails to return so-far the customer the card within three weeks following the expiry or termination of customer relationship in perfect condition, is ineffective.

b) The clause in terms and conditions of a mobile operator, after for sending an invoice in paper form (in addition to providing an Internet Customer Portal) a separate fee accrues, is in any case ineffective, if the supplier sells the product not only of the Internet.

BGH JUDGMENT III ZR 32/14 from 9. October 2014

BGB § 307 Abs. 1 Set 2

a) The clause in terms and conditions of a mobile operator, after one for transfer of SIM card “Pledge” in the amount of 29,65 € is charged, as the “Liquidated damages” will be retained, fails to return so-far the customer the card within three weeks following the expiry or termination of customer relationship in perfect condition, is ineffective.
b) The clause in terms and conditions of a mobile operator, after for sending an invoice in paper form (in addition to providing an Internet Customer Portal) a separate fee accrues, is in any case ineffective, if the supplier sells the product not only of the Internet.
BGH, Judgment of 9. October 2014 – III ZR 32/14 – OLG Frankfurt am Main
LG Frankfurt am Main
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Der III. Civil Division of the Federal Court from the hearing 9. October 2014 by the Vice President and the judges Dr Schlick. Herrmann, Wöstmann, Seiter and rider
hereby:
The revision of the defendant against the judgment of 1. Civil Division of the Higher Regional Court of Frankfurt am Main from 9. January 2014 is rejected.
The cost of Revisionsrechtszugs has to bear the defendant.
Of right
Facts
The applicant, a qualified list in the facilities of the Federal Office of Justice in accordance with § 4 Abs. 1 UKlaG registered Verbraucherschutzverein, requested by the defendant telecommunications companies, to refrain from the use of its terms Terms and Conditions. The defendant offers mobile services. It provides its customers SIM cards available, which are inserted into the telecommunications equipment and the compounds prepared by the in its mobile network.
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In their terms and conditions, the defendant used un-ter the heading “XII. Obligation and responsibility of the participant / SIM card and SIM card deposit / plug in” inter alia, that:
“7. The customer ceded SIM card remains the property of D. Telecom. D. Telecom they may at any time replace it with a replacement card. For transfer rises D. Telecom ein SIM- Kar-tenpfand in the amount of EUR 29,65 including. VAT (z.Zt. 19 %). After the expiry of the validity period and upon termination of the customer relationship, the customer has the SIM card within three (3) Weeks in perfect condition on D. Telecom zurückzusen-the. If the customer here compared, behält D. Telecom pledge in the amount of EUR 29,65 including. VAT (z.Zt. 19 %) one as liquidated damages, falls D. Telecom kei-nen higher or the customer proves no less damage. …”
The defendant provides its residential customers the bills in an accessible over the Internet subscriber portal, where it holds the data in each 12 Months, the itemized 80 Days, ready for retrieval. Under the heading “WE. Invoicing and Payment / objections” is in number 10 Letters a cc of the Terms and conditions of loading complained (henceforth: Terms and Conditions) controlled, that the provision of a bill in Pa-pierform occurs only, the extent expressly required by the customer, and that fees apply according to the price list.
The price list is in section “Other prices” articles containing provision:
“Paper-bill, monthly mailing 1.50”
The applicant considers, Nummer XII 7 Set 3 to 5 Terms and vorzitierte Re-gelung in the price list are for violating the right of ERAL-
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Conditions of Business ineffective. It requires the defendant, the use of these provisions (and identical content) to refrain and not to rely on existing contracts on them. The district court suit regarding number XII 7 Set 3 to 5 Upheld Terms and dismissed the remainder. The directed against that judgment before the defendant th is unsuccessful, has during the Higher Regional Court sentenced to also appeal filed by the applicant, the defendant also, to refrain, to use the quoted provision of the price list and to rely on the execution of existing contracts on them. With its authorized by Beru-fung court revision, the defendant pursued her Klageabwei-A RESOLUTION respect to all rules further.
Reasons
The permissible revision is unfounded.
I.
1. The Court of Appeals stated (MMR 2014, 451), Nummer XII 7 Set 3 to 5 Conditions are invalid.
This is true of the clause on the collection of maps pledge (No.. XII 7 Set 3), because the defendant trying to impose unilateral contracts abusive own interests at the expense of their contractors, without sufficiently to take into account their needs and grant them a to-measured balance. In the hereafter to be made Inte-
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ress weighing up go the provision of a pledge card in the amount of 29,65 Further €, than is necessary to protect the legitimate interests of the defendant. The Commission acknowledges that a contractor will be contractually bound form, for the fulfillment of its obligations to provide a guarantee in the form of a (Bar-)To provide deposit. Clauses, which the contractual partner of the user imposed a security deposit in an amount, which went far beyond the legitimate security interest, However, contrary to § 307 Abs. 1 BGB. So the layers Things here.
To prevent any abuse of data stored on the SIM last-Kar-th data it was not necessary, to provide a sufficient incentive to return. Thereby, that the parties the defendant would return the cards in perfect condition and the defendant collect the returned cards from destruction, they magnify the possibility of unauthorized use of the data. The extent of the named defendants risk of abuse is also unlikely.
An interest of the defendant, hedge overlooking the in the SIM card contained the return receipt-requested resources, would in principle not be criticized. After her own lecture the defendant leave the cards at the moment, however, destroy a company. It is completely open, whether they ever take a recovery in attack. In this case, if it were so far only a theoretical option.
The amount of the deposit also go beyond a legitimate Sicherungsin-interest. The defendant itself has stated, the pledge would not meet the cost of the SIM card.
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The rules governing the return obligation (No.. XII 7 Set 4 Terms and Conditions) was ineffective, because it penalizes the contractor of the defendant unangemes-sen. The defendant had not established either at first instance or in the appellate instance, why the return have to necessarily take place within three weeks. She claimed that an average contract-partner go after the three-week period to the inapplicable opinion, no longer be entitled to return the SIM card, take and withdraws. He would then deter, zuerlangen-back the pledge. Moreover, contrary to regulation of the transparency requirement of § 307 Abs. 1 Set 2 BGB, because the challenged regulation, after the card within three weeks “return” had, is not clearly. The Klau-sel leave both the opportunity to, that the dispatch of the card by the customer for the term protection is sufficient, and the interpretation, that significantly was the access to the defendant.
The scheme, that the card is in a “perfect condition” was back-send, also take into account the interests of the parties is not sufficient.
The agreement of liquidated damages (No.. XII 7 Set 5 Terms and Conditions) in any event ineffective, because the amount demanded does not correspond to the expected in the ordinary course of things, damage. Ent distinctively could, was there not to expect a misuse of the cards, be at most the loss of the material value of the SIM card. The defendant, however, acknowledged himself, that the pledge does not correspond to the exact value of the SIM card in terms of production costs. Furthermore, the Klau-sel § contradicts 309 No.. 4 BGB and contrary beyond further breached § 307 Abs. 1 Set 1 BGB, because they are relevant to the content in the control kun-
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detected denfeindlichsten interpretation and cases, in which a contract partner of the defendant that the card not more timely, but in “proper” State back chic. In such a case, but can not cause harm to the defendant. If it was in the clause a penalty scheme, as the Commission asserts, they would be ineffective, because with essential basic principles of the legal regulation, of the departed will, is not compatible. The determination of the soft statutory model of § 339 BGB, to belong to the fault requirement of the basic principles of the statutory scheme. However, the clause see a no-fault penalty ago.
2. The offending term on the cost of a paper invoice sent was invalid. Contrary to the opinion of the District Court, it was not a price agreement, the content of a control is not subject. The Be-humor was incompatible with essential basic principles of the law and penalize the contractor of the defendant unreasonably Wei-se. Part of the essential principles of the dispositive law, that each individual concerned had to fulfill its legal obligations, to require a separate fee without spending. A claim for He-set costs incurred consists only, if this is provided for in the Act. Any charging scheme in terms and conditions, which are not on a commercial basis in law for the individual customer vomited th main- or ancillary support, shift but expenses for the fulfillment of its own obligations or purposes of the user trying, constituted an unreasonable deviation of legislation and is therefore contrary to § 307 Abs. 2 No.. 1 BGB. This is the case here.
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II.
This keeps the stand legal scrutiny.
1. By law, the applicant is required under § 1 UKlaG of the defendant, to refrain, Nummer XII 7 Set 3 to 5 Terms to use and rely on be-standing agreements with these provisions.
a) Nummer XII 7 Set 3 Conditions of violating § 307 Abs. 1 Set 1 BGB, because the rules contained therein, that the defendant is a SIM card deposit of 29,65 € rises, their clients contrary to the requirement of good faith disadvantaged inappropriate. However, clauses, involving the Gestel-lung collateral for receivables of the user, can not be criticized from the outset (vgl. with. B. BGH, Judgments 14. July 1987 – X ZR 38/86, References omitted 101, 307, 315 and from 8. October 1986 – VIII ZR 342/85, References omitted 98, 303, 308). However, they provide an unfair disadvantage of the opponent of the user is, if the amount of the security over the si-to-storing interest considerably beyond. This is evident not least from a parallel vote to § 309 No.. 5 BUCHST. a BGB. Thereafter, the agreement of the user with a blanket claim for damages or He-record an impairment loss is ineffective, if the fee exceeds the in the regu-ten cases expected in the normal course of things or the damage usually entering impairment. This is based on the general principle, that the user must provide general business conditions in the event of power disturbances no advantages at the expense of its contractual partner, which significantly exceed its interest in the vereinba-ing contemporary settlement of the legal relationship.
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By law, the Court of Appeal it is assumed, that the Kar-tenpfand in the amount of 29,65 €, the defendant raises the, is not justified by a anzuerken-nendes interest.
aa) The judgment of the lower court, claimed by the defendant as a Cash Deposit 29,65 € exceeded the material value of the return-to-SIM card by far, is not objectionable. The complaint insofar raised by the Revi-sion, in the judgment were to be found not Ausführun-gen to, that are the costs of producing a SIM card actually lower than the amount in question here, is already therefore unfounded, because the starting point is not in the design of the security interest of the “New-worth” a SIM card, but only the material value (Recycling-Wert) may be a used and deactivated SIM card.
In this respect, the finding of the Court of Appeal, the defendant ha-be also with regard to possible recycling of the raw materials contained in the zurückzu-sending cards (“Card Recycling”) no legitimate interest in the customers demanded their deposit, because they can destroy the returning cards, not objectionable.
Wrongly criticized the revision, thinking it was illegal, when the Court of Appeal abstelle it, that the defendant had not yet started a raw material utilization. As stated by the defendant, is economically justifiable only to take in an attack to-future recycling, if had been to before-accumulated a larger amount of SIM cards. Therefore Müs-se the return of these cards are at an early stage to ensure. This Ar-argumentation goes missing. The lower court relied on to support its view, not only, the defendant currently do not take recycling
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returned before cards. What is relevant is been, that the plans this Be-accused also not concrete, but currently can destroy the used SIM cards from a Professional. In this situation, the assessment of the lower court is not objectionable, the defendant may have a legitimate interest, their current customers a deposit abzuverlan-gen, not justified on the grounds, they would like to keep only the theoretical option of a future economic recovery of the returned SIM cards face.
Unfounded is the concern expressed by the revision, the defendant, it will force at right pronounced the condemnation indefinitely, to refrain from the use of the clause, impossible, later to take the recycling of deactivated cards in attack, as required for this response rate is deactivated cards is not guaranteed without deposit. If the defendant actually seriously pursue the recovery of Maps, would the sentencing zugrundelie-ing, the dispute and thus the amount of legal force determ-ing Facts (vgl. this BGH, Judgments 23. February 2006 – I ZR 272/02, References omitted 166, 253 Rn. 23 ff, 29 f and the 14. July 1995 – The ZR 171/94, NJW 1995, 2993, 2994) modify, so that the legal situation would be to re-examine.
bb) Contrary to the opinion of the audit, the defendant justifying also the no deposit required, demonstrated protective value, recover the deactivated SIM cards to avoid reputational privacy scandals. The different tatrichterliche evaluating the pros instances revision is unobjectionable.
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In particular, holds, contrary to the revision, the recital-gung, that the risk of unauthorized reading out through memorized on the card there in the first place even during their use, tatrichterlichen within the discretion. She is not in contradiction to the alleged experience of the audit record, the average mobile wireless client will the safety of its – located in particular still in its mobile-radio device – activated SIM card more attention to rule-ken, as the whereabouts of an already disabled and therefore supposedly nutz-type card. This may be true, but does not exclude, that for potential “Data spies” an active SIM card with suspected current data interes-santer is no longer usable as a. Added to this, that an inserted in a mobile radio device, Active card is easier to find than one such, which is removed after its deactivation from the device and stored somewhere or is discarded.
As far as the revision of the assessment of the Court of Appeals, the occurrence of a feared abuse by the defendant on the deactivated SIM cards still readable data is unlikely, with reference to ih-ren pleadings in support of its appeal and in the pleading of 19. Au-gust 2013 confronts, This is unhelpful for their legal position. This submission deals with a possible abuse scenario and its consequences, but not with the significant probability, that such a can-kick. The newspaper article submitted by the defendant, their feh-loin into account challenges the revision, are provided to support their pre-contract unproductive. The articles deal with completely different data than the abuses-person you, who fears the defendant.
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Also wrongly alleges that the consideration of the revision Berufungsge-Court erred as a thinking, it was not possible to determine, that the risk of Da-tenmissbrauchs after the contract end of such a significant weight was, that it would be justified, to charge a contractor with a mortgage, because the defendant named neither own nor cases known cases of other providers, in which an unreturned card had been abused. As far as the revision here to objecting, that a data scandal was so far failed to, let alone to the conclusion, that the mortgage clause could have in so-far achieved their effect, it goes past the reasoning of the Court Beru-fung. The conclusion is drawn from the audit have therefore not viable, because the defendant, whereupon the Court of Appeals has stopped, the misuse of such cards Anbie-ter, collect the no deposit return, has not presented. In that regard, it should be noted-, that according to the uncontradicted remaining argument of the plaintiff, the T. D. GmbH offers its customers not required of such pledge to be particularly large mobile operator.
Failure is also the objection of the audit, the Court of Appeal did not deal with the presentation of the defendant, one about her being laste-ter “Date Scandal” be life threatening for them as smaller telecommunications companies. The lower court has already held the occurrence of such EVENT-certi- ficate for not probable, so that it does not depend on its consequences for the defendant.
Unfounded, the complaint is further revision, the Court of Appeal it ha-be missed, to deal with the questions under Presentation evidence of the defendant, the RPA of her prompted removal cards by a specialist company guarantees to a greater extent, that the reconstruction of
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Data would be impossible on the SIM card, as when the card (by the customer) would only cut. This can as evaluating the Berufungsge-court, the risk of data misuse deactivated SIM cards is not so much, that the imposition of a redemption pledge was justified, not to question. The revision reply rightly points out, the risk, man be for the purpose of data misuse a cut-up card from the household waste of the user “fish”, is negligible ge-ring. In addition, that in such a case, most of the users concerned threatens a concrete disadvantage; the risk of “Date Skan Dals”, is able to damage the reputation of the defendant, located more than away. On the under-ent effectiveness of both methods for deactivation of cards, it does not matter so.
cc) N is the further objection to the revision, the Beru-fung court had not dealt with the presentation of the defendant, a Miss-consumption deactivated SIM cards is also possible in the way, that customers or other third parties resold the cards in a fraudulent manner or in any other way, about by exchange for or in mobile devices befind Liche-activated maps, could circulate. The defendant has presented this single-lich in the first instance. In the appeal it is no longer come back to this and have only discussed the fears of her card abuse still from the viewpoint of the unauthorized reading of data stored on the deactivated SIM card data. The Court of Appeals – with the effect of § 314 Set 1 Code of Civil Procedure – reproduced only this aspect as Abuse Beklagtenvor bringing in the second instance in the factual findings of the judgment. Accordingly, it had on the first instance talk, whose discussion is now missing the revision, no longer received.
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dd) Other aspects, the amount of required “Pledge cards” justify, the defendant has not argued. As far as her Prozessbevoll-mächtigter in the hearing of the Senate – im starting to-meeting – has pointed out, to the SIM cards have a legitimate interest in respect of their property, to give their customers a spürba-ren incentive, comply with the restitution obligation, missing for the design of this abstract interest of any lecture in the Tatsachenin-punch.
b) From the ineffectiveness of number XII 7 Set 3 Conditions also follows, that number XII 7 Set 5 Conditions can not stand. The compensation scheme contained therein, to the case of a breach by the Client against the previously set statuierte in return obligation pledge of 29,65 € will be retained as liquidated damages, ties of language and content-lich to the ineffective from the above, the clause on Uplift-tion of the pledge cards. When deleting the related thereto set part (“behält D. Telecom the deposit of 29,65 € inkl. VAT a ...”) yields the clause content and language no longer makes sense. On the other considerations the Court of Appeals for the invalidity of the clause under § 307 Abs. 1 Set 1, § 309 No.. 4 and 5 BUCHST. a BGB and the other hand raised objections to the revision it is not more, since only content separable from each other, individually out of himself more understandable che provisions in the Terms and Conditions may be subject to ge there separated efficacy testing. The separability of a clause and thus their decomposition into a permissible content and a content un-allowable part is only given, if the invalid portion of the clause can be deleted, without the sense of the other part suffers
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(suction. blue-pencil-test; st. Rspr. z.B. Senate judgment of 10. October 2013 – III ZR 325/12, NJW 2014, 141 Rn. 14 mwN), which is not the case here.
c) Also between the invalid records 3 and 5 Number of XII 7 Conditions contained in regulation set 4 is for violation of § 307 Abs. 1 Set 1 BGB ineffective. It can be based on, whether the determination, after the SIM card must be returned upon completion of the contract within three weeks in perfect condition to the defendant, in itself is objectionable. The invalidity of the sentence in 3 and 5 regulations contained extends even to set 4, if this Be-humor – Away at thinking of Theorem 3 and 5 – in itself is non-thoughtfully. Is a General of several provisions Geschäftsbe-conditions seen for themselves ineffective and is it with another, acceptable when considered in isolation clause in an inner-hang together, the ineffectiveness of the overall mechanism can give (BGH, Judgments 25. June 2003 – VIII ZR 335/02, NJW 2003, 3192 f; from 14. More 2003 – VIII ZR 308/02, NJW 2003, 2234, 2235 and from 26. October 1994 – VIII ARZ 3/94, References omitted 127, 245, 253 f; see also Case 12. September 2007 – VIII ZR 316/06, WM 2007, 2336 Rn. 15). Because the user from an existing meh-eral parts of clause, one part of which can only endure, when the other part is ineffective, may be because of the commandment of the Trans-parency pre-formulated contract terms (§ 307 Abs. 1 Set 2 BGB) not plead in his favor on the invalidity of the clause other part. Nothing else can apply for externally separate clauses, the contents are based aufein-other (vgl. BGH, Judgments 25. June 2003, 14. More 2003 and 26. October 1994 or. cit).
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That is the case here. Nummer XII 7 Set 3 Terms shall make arrangements to secure the sentence in 4 regulated return obligation of the customer. Set 5 determined the legal consequences in the event of breach of this duty. All three provisions are so intertwined content and represent a total control package. The (possible) Safety of sentence 4 arises only due to the ineffectiveness of the sets 3 and 5. From Green to the clarity requirement of § 307 Abs. 1 Set 2 Civil Code, the defendant called to but not in their favor on the invalidity of such frame-th of herself regulations.
2. Equally true, the Court of Appeal has recognized it, that the plaintiff pursuant to § 1 UKlaG against the defendant has a claim for injunctive relief with respect to the provision contained in the price list, according to the customer for an invoice in paper form 1,50 Has to pay €.
a) Wrongly, the revision challenges the view of Be-rufungsgerichts, the scheme is able to control. Although according to § 307 Abs. 3 Set 1 Civil Code provisions other than those of the control content, regulate the nature and extent of the contractual principal obligation and the purpose to zah-loin remuneration directly (Service description and price agreements Club); according to the rules of the civil law principle of autonomy Privatau-it is optional for the Contracting Parties in general, To determine performance and reward, and the absence of legal requirements is lacking in so far as regularly-even on a control scale (st. Law, see e.g.. Senate judgment of 13. January 2011 – III ZR 78/10, WM 2011, 1241 Rn. 15 m.umfangr.w.N.). In contrast subject in accordance with § 307 Abs. 3 Set 1 Civil Code of the content control in accordance with §§ 307 to 309 BGB such (Preisneben-)Agreements, Although the indirect impact of price and performance, but this not from-
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finally set, and existing legislation, particular Rege-mendations of the dispositive statutory law, supplement or deviate from these.
In the disputed clause is a de-Preisnebenabre. It does not regulate the paying for mobile services at prices even. Rather, its subject is the fee for an offered by the defendant by-product, that the concept of the contract, after the invoices-gen normally be given only available in electronic form, obtained only as off-acceptance.
b) The rules contained in the price list on a gesonder-th charge for sending an invoice in paper form from 1,50 € differs from the statutory rules, and is with the fundamental ideas of un-compatible (§ 307 Abs. 2 No.. 1 BGB). One of the essential basic principles of dispositive law, that each individual concerned has to fulfill its obligations gene, to require a separate fee without spending. A claim for compensation for costs incurred is only, if this is provided for in the Act. Is not the case, can not be passed on to third parties incurred, by obligations are explained in General Standard Terms-conditions to individual services to contractors. Any charging scheme in terms and conditions, which are not provided on a commercial basis in law for the individual client (Head- or secondary)Based performance, shift but expenses for the fulfillment of its own obligations or for purposes of the user ver-examined, prepared in accordance with the case law of the Federal Court a deviation of legislation and is therefore violates § 307 Abs. 2 No.. 1 BGB (z.B. Senate judgment of 18. April 2002 – III ZR 199/01, NJW 2002, 2386, 2387; BGH, Judgment of 13. February 2001 – XI ZR 197/00, References omitted
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146, 377, 380 f or. mwN). In addition, the incompatibility of a clause with essential basic principles of legal regulation indicates a ge-gen in good faith in violation of this unreasonable disadvantage of Ver-contracting party in accordance with § 307 Abs. 1 Set 1 BGB (Senate op; BGH aaO S. 384 or. mwN).
So the issue is here. The defendant objects with their In-bot, was illustrated again as in the hearing of the Senate, not only to customers, the end with their contracts on electronic Shem way on the Internet. Only when this would be the case, the defendant could assume, to meet the over all its contractors be-standing obligation to issue invoice completely and comprehensively by Be-provision of the bill in its Internet Customer Portal (to Beden-ken contrast, For viewing via an Internet portal to keep invoices only, see judgment of the Senate 16. July 2009 – III ZR 299/08, NJW 2009, 3227 Rn. 14 mwN). Since the defendant but not served alone these customers, can not set the expectation based on their business, that its contractors have virtually without exception, have internet access and are able, enter the invoices issued to them electronically. Even taking into account the, that the spread of the in-ternetnutzung since the decision of the Senate 16. July 2009 (aaO Rn. 21) wei-ter may have increased, can not be assumed, that the settlement of private legal relations is strengthened through this medium to the general standard. In view of this, (also) , to grant-ment of an invoice in paper form continue a contractual obligation of the defendant, for which they may require no separate payment.
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3. The precaution pickled leave to appeal the defendant is irrelevant, because the appellate court has unlimited revision zugelas-sen (vgl. z.B. BGH, Decisions of 1. March 2010 – II ZR 249/08, WM 2010, 1367 Rn. 1 and from 24. July 2008 – VII ZR 205/07, juris).
Schlick Herrmann Wöstmann
Seiter tab
Courts:
LG Frankfurt am Main, Decision of 10.01.2013 – 2-24 The 159/12 –
OLG Frankfurt am Main, Decision of 09.01.2014 – 1 You 26/13 –