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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 – Reasoning
Press Release No. 32/2012 of 22 May 2012
Order of 4 May 2012
1 BvR 367/12
The First Senate of the Federal Constitutional Court ruled by Order of 4 May 2012 by means of an injunction that the obligation to announce prices introduced by the reform of § 66b.1 of the Telecommunications Act (Telekommunikationsgesetz - TKG) in the case of what are known in Germany as "call-by-call" services does not enter into force prior to 1 August 2012. Press release No. 27/2012 of 4 May 2012, which can be retrieved from the homepage of the Federal Constitutional Court, provides information on the facts. The Act Amending Telecommunications Regulations (Gesetz zur Änderung telekommunikationsrechtlicher Regelungen) containing the new wording was promulgated in the Federal Law Gazette (Bundesgesetzblatt) on 9 May 2012.
The Senate has now added reasoning to the ruling. Accordingly, the injunction, which was handed down with 7:1 votes, is based in essence on the following considerations:
I. The motion for an injunction is admissible.
A constitutional complaint can in principle not be lodged against an Act prior to its promulgation; this also applies in principle to the motion for an injunction addressing an Act. Exceptionally, however, the Federal Constitutional Court can hand down an injunction prior to the promulgation of the impugned Act if the legislation proceedings have been fully completed before the legislating bodies Bundestag and Bundesrat, the competence of the Federal President to review prior to certification is respected and the impugned provisions are to come into force so soon after the promulgation of the Act that according to a realistic assessment, effective injunctive protection of fundamental rights cannot be obtained. These prerequisites apply here. The impugned statutory provision came into being by virtue of a resolution of the Bundestag and with the approval of the Bundesrat. Since § 66b.1 of the Telecommunications Act in its amended version is to come into force on the day after the promulgation of the Act, a motion to hand down an injunction not lodged until after promulgation would not be able to ensure effective protection of fundamental rights. The complainant would have to accept grievous disadvantages at least for a transitional period because without the necessary price announcement it would lose its right to remuneration and also run the risk of being punished because of a regulatory offence.
II. The motion is largely successful.
1. An injunction cannot be issued if the main proceedings are manifestly unfounded. One may however not presume this to be the case with regard to the complainant's constitutional complaint. Rather, there is much to suggest that the legislature should have set the coming into force of the price announcement obligation, which encroaches on the freedom to exercise a profession, at a later point in time in order to safeguard the fundamental right of those concerned under Art. 12.1 of the Basic Law (Grundgesetz - GG). The need for a transitional regulation, in particular for the new law to enter into force at a later date, is considered in those cases in which compliance with new regulations on the exercise of a profession is not possible without time-consuming, capital-intensive conversions of the operational procedures, and the holder of the fundamental rights would therefore have to temporarily cease exercising its professional activity should the new regulation enter into force immediately, or would only be able to continue it under unacceptable conditions. This is the case at hand. The complainant has made a plausible case that not only it, but also other providers of "call-by-call" services, would not be able to completely implement the new price announcement obligations for several months. It is not evident, by contrast, that the legislature was able to consider a transitional period to be dispensable because the introduction of the price announcement was so urgent for reasons of consumer protection as to outweigh the interest of the "call-by-call" providers in a transitional period in every instance. The legislature was hence also not permitted to dispense with a transitional period claiming that the "call-by-call" providers would in any case have a sufficiently long period for conversion until the anticipated promulgation of the Act. At least prior to the coming into being of the Act, the holder of the fundamental right would as a rule not have anticipated any difficult-to-reverse restructuring or indeed extensive investments with regard to a coming new regulation.
2. The weighing of consequences which is therefore required in the injunctive legal protection proceedings leads to the postponement of the coming into force of the price announcement obligation with "call-by-call" services until 31 July 2012. In injunctive legal protection proceedings, an Act may only be provisionally prevented from coming into force if the disadvantages which would be entailed by it coming into force once its unconstitutionality had been subsequently ascertained clearly outweigh in terms of their extent and gravity the disadvantages which would occur in the event of the temporary prevention of an Act that turned out to be constitutional. The disadvantages risked by the complainant - and likely by a number of other "call-by-call" service providers - in the event of the immediate coming into force outweigh the risks resulting for consumers from a limited postponement of the coming into force. The complainant would have been forced by the immediate coming into force of the price announcement obligation to temporarily convert its business model, with the likelihood of a considerable economic impact, this impact however being difficult to assess in individual cases. The complainant has now been able to implement the price announcement. Considerable weight however attaches to the disadvantages resulting from it not being possible to install the necessary interim price announcement functionally until the end of July 2012 at the earliest. For a provisional period, it could completely do with out the tiered pricing which takes place according to time intervals in order to avoid violating the interim price announcement obligation. This would however mean it giving up a major characteristic of its business model to date, which largely relies on a partly very considerable differentiation in the call prices between different parts of the day. Alternatively, it could invoice calls strictly according to the price announced at their commencement, even where there was a change of tariff. This would however mean that it would lose the higher income should the cheaper tariff announced change to a more expensive one. Conversely, in case of a change from a more expensive tariff to a cheaper one, if the call was nonetheless invoiced at the more expensive price announced, it would have to expect corresponding user dissatisfaction. With such an approach, the complainant could certainly only practice the model of tiered pricing which it selected to a restricted degree.
The risks incurred by consumers if the price announcement obligation provisionally does not come into effect are considerably less ponderous. It cannot be ruled out that, should the current legal situation continue to apply, individual "call-by-call" providers will increase their prices in the hope of customer ignorance. There are however no indications of a serious, global risk to consumers making immediate action on the part of the legislature indispensable.