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Entry into force of the introduction of a statutory obligation to announce the price in the case of “call-by-call” telephone services postponed
Press Release No. 27/2012 of 04 May 2012
Order of 4 May 2012
1 BvR 367/12
§ 66b.1 of the Telecommunications Act (Telekommunikationsgesetz - TKG) in its currently valid version entails an obligation to announce the charges incurred prior to the commencement of the telephone call only with "premium" services. A violation of this obligation leads to the cessation to apply of the right to remuneration (§ 66g No. 1 of the Telecommunications Act), and can furthermore be punished as a regulatory offence (§ 149.1 No. 13d of the Telecommunications Act).
The Act Amending Telecommunications Regulations (Gesetz zur Änderung telekommunikationsrechtlicher Regelungen), which was adopted by the German Bundestag on 9 February 2012 and to which the Bundesrat consented on 10 February 2012, expands the obligation to announce the price as stipulated by § 66b.1 of the Telecommunications Act to also cover what are known in Germany as "call-by-call" services. Providers of "call-by-call" services must announce the applicable tariff in future before such a call begins. In the event of a change of tariff occurring during an ongoing call, the customer must be informed. The new provision is to come into force one day after the promulgation of the Act. The Federal President certified the Act on 3 May 2012.
The complainant offers telecommunications services, including "call-by-call" services. With its constitutional complaint, which was lodged back in February 2012, and its motion for an injunction that was lodged at the same time, it is complaining of a violation of its fundamental rights to free exercise of a profession, to property and to economic freedom to act by virtue of the fact that the obligation to announce the price is to come into force without any transitional period. It claims that it is unable to implement the prescribed price announcements until the anticipated time of entry into force. It claims to be unable to comply with the obligation to announce the price prior to the commencement of a call until the end of March 2012 at the earliest, and not to be able to comply with the obligation with regard to a change of tariff until August 2012 at the earliest.
The complainant's motion for an injunction is largely successful. The First Senate of the Federal Constitutional Court ruled by means of an injunction that the obligation to announce prices introduced by the reform of § 66b.1 of the Telecommunications Act in the case of "call-by-call" services does not enter into force prior to 1 August 2012. The ruling was initially handed down without reasoning given the immanent promulgation of the Act.
The press office will be announcing the essential considerations on which the injunction is based in another press release.