Federal Constitutional Court - Press office -
Press release no. 32/2012 of 22 May 2012
Order of 4 May 2012 – 1 BvR 367/12 –
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
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 tele¬kommunika¬tions¬rechtlicher
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.
This press release is also available in the original german version.
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