Cologne Local Court, 25.01.2016, Ref.: 142 C 408/15
Section 46 of the Telecommunications Act (TKG) provides for a special right of cancellation when moving abroad. Section 46 (8) sentence 3 TKG regulates this:
If the service is not offered at the new place of residence, the consumer is entitled to terminate the contract subject to a notice period of three months to the end of a calendar month
Despite this clear regulation, many telecommunications service providers continue to try to induce cancelling consumers to make further payments by circumventing this regulation.
In the judgement of the Cologne Local Court discussed here, the court had to decide whether a contract had been properly terminated by a consumer who had moved to Thailand.
Facts: Relocation to Thailand and extraordinary cancellation
The plaintiff had given up his home in Germany and moved to Thailand. As the telecommunications provider, the defendant, was unable to offer its services in Thailand, the plaintiff exercised his extraordinary right of cancellation in accordance with Section 46 (8) sentence 3 TKG. He cancelled the contract on 5 January 2015 and paid a fee of EUR 18.50 for the month of May as a precautionary measure. He later demanded a refund of this amount, as he had effectively cancelled the contract, but the defendant refused to reimburse him. The plaintiff then took the matter to the Cologne District Court.
Judgement of the Cologne Local Court: Effective cancellation and claim for reimbursement
The Cologne District Court ruled in favour of the plaintiff and decided that he was entitled to a refund of the €18.50, as the payment was made without legal grounds. The court found that the plaintiff's termination took effect on 30 April 2015, as he had already moved to Thailand on 28 February 2015 and the defendant was unable to provide any services there.
Cancellation period and effectiveness
The defendant argued that the notice period of three months should only be calculated from the date of the move, 28 February 2015. However, the court disagreed and ruled that the notice period began to run from receipt of the notice of termination on 5 January 2015. However, the decisive factor was that the move must have actually taken place by the time the notice period expired, i.e. on 30 April 2015 at the latest. As the plaintiff had already moved on 28 February 2015, this condition was met and the notice of termination was therefore given in due time.
Justification pursuant to Section 46 (8) sentence 3 TKG
The court clarified that the right of cancellation pursuant to Section 46 (8) sentence 3 TKG only applies if the customer actually moves to a location where the provider cannot provide services. The cancellation period begins with the receipt of the notice of cancellation and ends after three months, but the cancellation only becomes effective when the move has actually taken place. In this case, the move had taken place in good time, meaning that the cancellation was effective and the plaintiff was entitled to reimbursement of the undue payment.
Summary: The Cologne District Court ruled in favour of the plaintiff and determined that the termination was effective on 30 April 2015 and in due time, as the plaintiff had moved to Thailand in good time. The plaintiff was therefore entitled to a refund of the unauthorised payment of 18.50 euros.
Source: Cologne Local Court
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