Федеральный верховный суд ЕС: односторонние изменения условий договора телекоммуникационных услуг

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

10 September 2026 ( * )

( Reference for a preliminary ruling – Approximation of laws – Telecommunications sector – Directive (EU) 2018/1972 – European Electronic Communications Code – Contract for electronic communications services – Power of the service provider to make changes unilaterally – First subparagraph of Article 105(4) – End users’ right to terminate the contract )

In Case C‑669/24, REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), made by decision of 26 September 2024, received at the Court on 11 October 2024, in the proceedings

Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V.

v Vodafone GmbH, intervening parties:

Bundesnetzagentur für Elektrizität, Gas, Telekommunikation und Eisenbahnen, THE COURT (Seventh Chamber), composed of F. Schalin, President of the Chamber, M. Gavalec (Rapporteur) and Z. Csehi, Judges, Advocate General: M. Campos Sánchez-Bordona, Registrar: A. Calot Escobar, having regard to the written procedure, after considering the observations submitted on behalf of:

– Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V., by T. Rader, Rechtsanwalt,

– Vodafone GmbH, by C. Rohnke, Rechtsanwalt,

– the Italian Government, by S. Fiorentino, acting as Agent, and by E. Manzo, avvocato dello Stato,

– the Romanian Government, by E. Gane, R. Antonie and L. Ghiță, acting as Agents,

– the European Commission, by G. Conte, O. Gariazzo and G. Meeßen, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the first subparagraph of Article 105(4) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).

2 The request has been made in proceedings between Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. (Federal Union of Consumer Organisations and Associations, Germany) (‘BV’) and Vodafone GmbH, a provider of telecommunications services, concerning the use, in the latter’s general terms and conditions, of a term granting it the right to change contractual conditions unilaterally.

Legal context

European Union law

Directive 93/13/EEC

3 Article 3 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) provides:

‘1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

…

3. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’

4 Under the annex to that directive, entitled ‘Terms referred to in Article 3(3)’:

‘1. Terms which have the object or effect of:

…

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

…

2. Scope of subparagraphs (g), (j) and (l)

…

(b) …

Subparagraph (j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.

…’

Directive 2018/1972

5 Recitals 257, 258, 275 and 276 of Directive 2018/1972 state:

‘(257) Divergent implementation of the rules on end-user protection has created significant internal market barriers affecting both providers of electronic communications services and end-users. Those barriers should be reduced by the applicability of the same rules ensuring a high common level of protection across the [European] Union. A calibrated full harmonisation of the end-user rights covered by this Directive should considerably increase legal certainty for both end-users and providers of electronic communications services, and should significantly lower entry barriers and unnecessary compliance burden stemming from the fragmentation of the rules. … Full harmonisation should extend only to the subject matters covered by the provisions on end-user rights in this Directive. …

(258) Contracts are an important tool for [end-users] to ensure transparency of information and legal certainty. Most service providers in a competitive environment will conclude contracts with their customers for reasons of commercial desirability. In addition to this Directive, the requirements of existing Union consumer protection law relating to contracts, in particular [Directive 93/13] and Directive 2011/83/EU of the European Parliament and of the Council [of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64)] apply to consumer transactions relating to electronic communications networks and services. …

…

(275) Any changes to the contractual conditions proposed by providers of publicly available electronic communications services other than number-independent interpersonal communications services, which are not to the benefit of the end-user, for example in relation to charges, tariffs, data volume limitations, data speeds, coverage, or the processing of personal data, should give rise to the right of the end-user to terminate the contract without incurring any costs, even if they are combined with some beneficial changes. Any change to the contractual conditions by the provider should therefore entitle the end-user to terminate the contract unless each change is in itself beneficial to the end-user, or the changes are of a purely administrative nature, such as a change in the provider’s address, and have no negative effect on the end-user, or the changes are strictly imposed by legislative or regulatory changes, such as new contract information requirements imposed by Union or national law. Whether a change is exclusively to the benefit of the end-user should be assessed on the basis of objective criteria. The end-user’s right to terminate the contract should be excluded only if the provider is able to demonstrate that all contract changes are exclusively to the benefit of the end-user or are of a purely administrative nature without any negative effect on the end-user.

(276) End-users should be notified of any changes to the contractual conditions by means of a durable medium. End-users other than consumers, microenterprises or small enterprises, or not-for-profit organisations should not benefit from the termination rights in the case of contract modification, in so far as transmission services used for machine-to-machine services are concerned. Member States should be able to provide for specific end-user protections regarding contract termination where the end-users change their place of residence. The provisions on contract termination should be without prejudice to other provisions of Union or national law concerning the grounds on which contracts can be terminated or on which contractual terms and conditions can be changed by the service provider or by the end-user.’

6 Article 3 of Directive 2018/1972, entitled ‘General objectives’, provides in paragraph 2(d) thereof:

‘In the context of this Directive, the national regulatory and other competent authorities as well as [the Body of European Regulators for Electronic Communications (BEREC)], the [European] Commission and the Member States shall pursue each of the following general objectives, which are not listed in order of priority:

…

(d) promote the interests of the citizens of the Union, by ensuring connectivity and the widespread availability and take-up of very high capacity networks, including fixed, mobile and wireless networks, and of electronic communications services, by enabling maximum benefits in terms of choice, price and quality on the basis of effective competition, by maintaining the security of networks and services, by ensuring a high and common level of protection for end-users through the necessary sector-specific rules and by addressing the needs, such as affordable prices, of specific social groups, in particular end-users with disabilities, elderly end-users and end-users with special social needs, and choice and equivalent access for end-users with disabilities.’

7 Article 101(1) of that directive states:

‘Member States shall not maintain or introduce in their national law end-user protection provisions diverging from Articles 102 to 115, including more, or less, stringent provisions to ensure a different level of protection, unless otherwise provided for in this Title.’

8 Article 105 of that directive, entitled ‘Contract duration and termination’, provides in paragraph 4 thereof:

‘End-users shall have the right to terminate their contract without incurring any further costs upon notice of changes in the contractual conditions proposed by the provider of publicly available electronic communications services other than number-independent interpersonal communications services, unless the proposed changes are exclusively to the benefit of the end-user, are of a purely administrative nature and have no negative effect on the end-user, or are directly imposed by Union or national law.

Providers shall notify end-users at least one month in advance of any change in the contractual conditions, and shall simultaneously inform them of their right to terminate the contract without incurring any further costs if they do not accept the new conditions. The right to terminate the contract shall be exercisable within one month after notification. Member States may extend that period by up to three months. Member States shall ensure that notification is made in a clear and comprehensible manner on a durable medium.’

German law

9 Under Paragraph 57(1) of the Telekommunikationsgesetz (Law on Telecommunications) of 23 June 2021 (BGBl. 2021 I, p. 1858), in the version applicable to the dispute in the main proceedings (‘the TKG’):

‘Where a provider of publicly available telecommunications services has reserved the right unilaterally to change a contract through the general terms and conditions and unilaterally changes the contractual conditions, the end user may terminate the contract without giving notice and without incurring costs, unless the changes

1. are exclusively to the benefit of the end user,

2. are of a purely administrative nature and have no negative effect on the end user,

3. or are directly imposed by EU or national law.’

10 Paragraph 307 of the Bürgerliches Gesetzbuch (Civil Code), in the version applicable to the dispute in the main proceedings (‘the BGB’), provides:

‘(1) Provisions in general terms and conditions shall have no effect if they unreasonably disadvantage the contracting partner of the party using them, contrary to the requirements of good faith. Unreasonable disadvantage may also arise from the provision not being clear and intelligible.

(2) In case of doubt, an unreasonable disadvantage shall be assumed to exist if a provision

1. is incompatible with essential basic principles of the statutory rule from which it diverges, or

2. restricts essential rights or obligations arising from the nature of the contract in such a way that achieving the purpose of the contract is jeopardised.

(3) Subparagraphs 1 and 2 [of the present provision] and Paragraphs 308 and 309 shall apply only to provisions in general terms and conditions which are intended to derogate from or supplement statutory rules. Other provisions may be of no effect pursuant to the second sentence of subparagraph 1 in conjunction with the first sentence of subparagraph 1.’

11 Under Paragraph 308 of the BGB:

‘In general terms and conditions, the following in particular shall be invalid …

4. … a term under which the party using it reserves the right to change the performance promised or to deviate from it, unless the agreement to the change or exception can reasonably be expected of the other party to the contract in the light of the interests of the user.’

The dispute in the main proceedings and the question referred for a preliminary ruling

12 BV, a consumer protection association, acting as entity entitled to bring actions to protect the collective interests of consumers, brought an action for injunctive relief before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) against Vodafone. That action for injunctive relief sought to prohibit Vodafone from using, in the general terms and conditions of contracts concluded with its customers concerning certain electronic telecommunications services, inter alia, a term under which Vodafone reserves the right unilaterally to change the contractual terms at its discretion, taking considerations of fairness into account.

13 In support of its action for injunctive relief, BV submitted that that term was contrary to the first and second sentences of Paragraph 307(1) and Paragraph 308(4) of the BGB and that it could not be justified by the first sentence of Paragraph 57(1) of the TKG. In that regard, BV maintained, in particular, that it followed from Paragraph 308(4) of the BGB that a term providing for unilateral changes to terms and conditions is to be valid only if the agreement to the change or exception can reasonably be expected of the other party to the contract in the light of the interests of the user.

14 Vodafone contended that the challenged term corresponded to the wording of the first sentence of Paragraph 57(1) of the TKG, which enables providers to reserve the right, in the general terms and conditions, to make unilateral changes. According to Vodafone, that provision contains an exhaustive rule. Thus, as the challenged term merely reproduced the wording of that rule, that term could not be subject to a review as to its validity in the light of the special provisions on terms and conditions. In any event, Vodafone maintained that that term did not put the customer at an unreasonable disadvantage in view of, first, the requirement to take considerations of fairness into account and, second, the special right to terminate which is granted to the customer in return. Last, in so far as the first sentence of Paragraph 57(1) of the TKG required that the right to make changes be provided for in the general terms and conditions, that provision was contrary to the requirement of full harmonisation referred to in Article 101(1) of Directive 2018/1972. That provision should therefore be interpreted in conformity with that directive, as meaning that it grants the right to make changes unilaterally without being subject to the restrictions stemming from Paragraph 308(4) of the BGB.

15 The Landgericht Düsseldorf (Regional Court, Düsseldorf) rejected the action, finding that the challenged term did not have as its purpose either to derogate from statutory provisions or to supplement them, with the result that a review of its content was excluded under Paragraph 307(3) of the BGB. According to that court, even assuming that such a review were possible, the challenged term would be admissible as it granted end users an extraordinary right to terminate at no cost, by which those users could terminate the contract before the proposed changes entered into force. Furthermore, that court found that the first sentence of Paragraph 57(1) of the TKG presupposed that a right to make unilateral changes could be provided for in terms and conditions and that that provision governed, in return for that right, the conditions for termination by the other parties to the contract.

16 BV brought an appeal against that judgment before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), which is the referring court, maintaining that the first subparagraph of Article 105(4) of Directive 2018/1972 and the first sentence of Paragraph 57(1) of the TKG do not grant the seller or supplier the right to make unilateral changes but merely govern the legal consequences of exercising that right. Vodafone requested that the appeal be dismissed.

17 The referring court is uncertain as to the interpretation of the first subparagraph of Article 105(4) of Directive 2018/1972. It takes the view that that provision may be interpreted in a number of ways. In that context, that court emphasises that, in Germany, that provision is often interpreted as conferring on the service provider the legal right to make unilateral changes. However, the opposite interpretation is also possible, according to which that provision governs only the legal consequences of the provider’s right to make unilateral changes, with the legal basis of the latter being governed by other rules.

18 In those circumstances, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must the first subparagraph of Article 105(4) of Directive [2018/1972] be interpreted as meaning that providers of publicly available electronic communications services other than number-independent interpersonal communications services are given the right unilaterally to change the contractual terms of the contract by operation of law and, in return, the end-user receives a special right of termination, or does the provision assume that the provider has a right unilaterally to amend the contractual terms which already exists for other reasons, and does it merely govern the resulting special right of termination of the end-user?’

The question referred for a preliminary ruling

19 By its single question, the referring court asks, in essence, whether the first subparagraph of Article 105(4) of Directive 2018/1972 must be interpreted as meaning that it grants providers of electronic communications services the right to change contractual conditions unilaterally or whether that provision presupposes that such a right exists and merely governs the right to terminate granted to end users where the provider has exercised that right to make changes unilaterally.

20 According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgments of 17 November 1983, Merck , 292/82, EU:C:1983:335, paragraph 12, and of 12 March 2026, Magyar Telekom , C‑514/24, EU:C:2026:184, paragraph 30 and the case-law cited).

21 In the first place, the first subparagraph of Article 105(4) of Directive 2018/1972 provides that end users are to have the right to terminate their contract without incurring any further costs upon notice of changes in the contractual conditions proposed by the provider of publicly available electronic communications services. That provision specifies that that right is, however, not to be granted to end users where the proposed changes are exclusively to the benefit of the end user; are of a purely administrative nature and have no negative effect on the end user; or are directly imposed by EU or national law.

22 Recital 275 of that directive states, in the same vein, that any changes to the contractual conditions by providers should give rise to the right of the end user to terminate the contract without incurring any costs, subject to the same exceptions as those set out in the preceding paragraph.

23 It thus follows from the wording of the first subparagraph of Article 105(4) of that directive, read in the light of recital 275 thereof, that that provision governs the consequences, for the end user, of a change in the contractual conditions proposed by the provider of electronic communications services. That provision provides for the situation in which such a change gives rise to a right to terminate at no cost and the exceptions to that right. By contrast, that provision does not establish the legal basis for the unilateral change or the conditions which a provider must satisfy in order to be able to unilaterally modify the contract. That provision therefore presupposes that such a right exists, without conferring such a right.

24 In the second place, that interpretation is supported by the context of the first subparagraph of Article 105(4) of Directive 2018/1972.

25 Article 105 of that directive, entitled ‘Contract duration and termination’, which is part of Title III of that directive, entitled ‘End-user rights’, lays down a general rule which is primarily intended to regulate the different situations in which end users may exercise their right to terminate their contracts and the conditions governing the exercise of that right. However, it must be emphasised that that article does not govern the rights of providers, nor does it confer on those providers the right to make unilateral changes.

26 It should also be observed that, pursuant to Article 101 of Directive 2018/1972, Article 105 of that directive provides for full harmonisation only to the extent that the latter aims to protect end users, and not providers. Similarly, recital 257 of that directive specifies that full harmonisation should extend only to the subject matters covered by the provisions on end user rights in that directive.

27 In addition, it follows from recital 258 of Directive 2018/1972 that the requirements of existing EU consumer protection law relating to contracts, in particular the requirements provided for by Directives 93/13 and 2011/83, are to apply to consumer transactions relating to electronic communications networks and services.

28 In that regard, Article 1(j) of the annex to Directive 93/13 mentions, among the terms liable to be declared unfair in application of Article 3(1) and (3) of that directive, those which have the object or effect of enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in that contract. Article 2(b) of that annex specifies, however, that Article 1(j) is without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he or she informs the consumer with reasonable notice and that the consumer is free to dissolve the contract.

29 It follows that the conditions under which the provider may reserve the power to unilaterally make changes come under Directive 93/13 and not Directive 2018/1972. Article 8 of Directive 93/13 also enables Member States to adopt or retain the most stringent provisions compatible with the TFEU to ensure a maximum level of protection for the consumer.

30 Accordingly, the analysis of the context confirms the literal interpretation of the first subparagraph of Article 105(4) of Directive 2018/1972 according to which that provision does not confer on providers the right to change contracts unilaterally but presupposes that such a right exists under other applicable rules. The exercise of that right to make changes therefore remains subject to the conditions and requirements deriving from EU and national law in the field of consumer protection.

31 In that regard, it should be reiterated that, in accordance with the case-law of the Court, although a term providing for unilateral changes may respond to a legitimate interest of the provider, such a term must nevertheless meet the requirements of good faith, balance and transparency deriving, inter alia, from Directive 93/13 (see, to that effect, judgment of 21 March 2013, RWE Vertrieb , C‑92/11, EU:C:2013:180, paragraphs 46 and 47).

32 Recital 276 of Directive 2018/1972 confirms that interpretation by stating that the provisions on contract termination are to be without prejudice to other provisions of EU or national law concerning the grounds on which contracts can be terminated or the conditions under which the contractual terms and conditions can be changed by the service provider or by the end user.

33 In the third and last place, the interpretation set out in paragraph 30 above is consistent with the objective of protecting end users, as stated in Article 3(2)(d) of Directive 2018/1972. The specific protection granted by that directive with regard to termination of contracts is in addition to the safeguards resulting from other rules of EU and national law applicable to contractual changes. In that regard, it must be observed that, as end users are the weaker party to a contractual relationship with sellers or suppliers, they should enjoy greater protection. The effectiveness of such protection can only be ensured by all of the measures established by different rules. That finding is also confirmed in recital 276 of that directive which states that the provisions on contract termination must be without prejudice to other provisions of EU and national law.

34 An interpretation according to which the first subparagraph of Article 105(4) of Directive 2018/1972, by itself, grants providers the right to make unilateral changes would be liable to exempt the exercise of that right from the conditions provided for by the general rules on consumer protection in EU and national law. Such an interpretation would be contrary to both the objective pursued by that directive and recital 276 thereof and cannot, therefore, be accepted.

35 In the light of the foregoing considerations, the answer to the question referred is that the first subparagraph of Article 105(4) of Directive 2018/1972 must be interpreted as meaning that it does not grant providers of publicly available electronic communications services other than number-independent interpersonal communications services the right to change contractual conditions unilaterally but rather that it presupposes that such a right exists under other applicable rules and merely governs the right to terminate granted to end users where a provider exercises the right to make changes unilaterally, without prejudice to the conditions and requirements laid down in that respect by EU and national law in the field of consumer protection.

Costs

36 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

The first subparagraph of Article 105(4) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code must be interpreted as meaning that it does not grant providers of publicly available electronic communications services other than number-independent interpersonal communications services the right to change contractual conditions unilaterally but rather that it presupposes that such a right exists under other applicable rules and merely governs the right to terminate granted to end users where a provider exercises the right to make changes unilaterally, without prejudice to the conditions and requirements laid down in that respect by EU and national law in the field of consumer protection.

[Signatures]

* Language of the case: German.