Judgment;Summary — ECLI:EU:C:2020:634
Date: 2020-09-03
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-539/19 — 1 
Case C-539/19 
Request for a preliminary ruling 
Date lodged: 
15 July 2019 
Referring court: 
Landgericht München I (Germany) 
Date of the decision to refer: 
4 June 2019 
Applicant: 
Bundesverband der Verbraucherzentralen und 
Verbraucherverbände — Verbraucherzentrale Bundesverband e.V. 
Defendant: 
Telefonica Germany GmbH & Co. OHG 
  
Landgericht München I 
(Regional Court, Munich I) 
… 
In the case of 
Bundesverband der Verbraucherzentralen und Verbraucherverbände, … — 
Verbraucherzentrale Bundesverband e.V.-, […] 10969 Berlin 
- Applicant - 
… 
v 
Telefonica Germany GmbH & Co. OHG, … 80992 Munich 
- Defendant - 
EN 
REQUEST FOR A PRELIMINARY RULING OF 4. 6. 2019 — CASE C-539/19 
 
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… 
concerning a claim [Or. 2] 
the Landgericht München I  
… issued on 4 June 2019 … the following 
Order: 
I. The proceedings are stayed pursuant to Paragraph 148 of the 
Zivilprozessordnung (Code of Civil Procedure; ZPO). 
II. The following question on the interpretation of Articles 6a and 6e(3) of 
Regulation (EU) No 531/2012 of the European Parliament and of the 
Council of 13 June 2012 on roaming on public mobile communications 
networks within the Union is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
Are Articles 6a and 6e(3) of Regulation (EU) No 531/2012 to be interpreted 
as meaning that, as from 15 June 2017, mobile communications operators 
were required automatically to switch all customers to the regulated tariff 
under Article 6a of Regulation (EU) No 531/2012 regardless of whether 
those customers hitherto had a regulated tariff or a special, so-called 
alternative, roaming tariff? [Or. 3] 
Grounds: 
I. The applicant is asserting claims for injunctive relief under the law 
governing unfair competition against the defendant for alleged infringements 
of the provisions of Regulation (EU) No 531/2012 of the European 
Parliament and of the Council of 13 June 2012 on roaming on public mobile 
communications networks within the Union (‘the Roaming Regulation’). 
1. The applicant is the umbrella association of all 16 consumer advice 
centres and 25 further consumer- and social-oriented organisations in 
Germany. Pursuant to Paragraph 2 of its statutes, the object of the 
applicant is to safeguard consumer interests, in particular by using 
appropriate measures to prevent infringements of the Gesetz gegen 
unlauteren Wettbewerb (Law Against Unfair Competition; UWG) and 
the Unterlassungsklagegesetz (Injunction Action Law) in conjunction 
with other consumer-protection laws. 
2. The defendant is a provider of telecommunications services. It 
provides consumers with, inter alia, the opportunity to conclude 
mobile communications contracts. 
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3. On its website www.o2online.de, the defendant published information 
on the regulated roaming tariff. Under the heading ‘General 
Information’, the defendant states the following: 
‘From 22 May 2017, all O2 customers can switch to the 
regulated EU roaming tariff by SMS. To do so, please send an 
SMS with the word “YES” to 65544. You will then be 
automatically switched to the regulated tariff. You will receive a 
confirmatory SMS once the switch is complete.’ … [Or. 4] 
Under the heading ‘How do I get the regulated EU roaming tariff?’, 
the defendant goes on to state …: 
‘You can basically switch to the regulated EU roaming tariff at 
any time quite simply via the O2 app. From 22 May 2017, all O2 
customers can also switch to the regulated EU roaming tariff by 
SMS. To do so, please send an SMS with the word “YES” to 
65544. You will then be automatically switched to the regulated 
tariff. You will receive a confirmatory SMS once the switch is 
complete. 
If you are already on the regulated EU roaming tariff (also 
called “Roaming Basic” or “World Zones Pack” and “Mobile 
Internet International”), you will be switched by 15 June 2017 
without any action on your part. Your current regulated roaming 
tariff will then be automatically transferred to the new regulated 
EU roaming tariff, which means that the domestic conditions 
governing your tariff (for calls, SMS and data) will also then 
apply to you in other EU countries from 15 June 2017.’ 
4. The applicant is of the opinion that, with its business practice of 
making the switch to a regulated roaming tariff for existing customers 
who had an alternative roaming tariff before 15 June 2017 conditional 
on consumers actively arranging that switch through an SMS or by 
means of the O2 app, the defendant is in breach of Articles 6a and 
6e(3) of the Roaming Regulation. Pursuant to Article 6e(3), second 
subparagraph, of the Roaming Regulation, the conditions were to be 
automatically made available to the consumers when that regulation 
entered into force, that is to say, on 15 June 2017. An active switch on 
the part of the consumers, in order to be able to make use of ‘Roam 
Like At Home’, should not be required. The defendant was obliged 
automatically to switch to [Or. 5] ‘Roam Like At Home’ roaming, 
regardless of whether or not consumers had previously chosen a 
special roaming tariff. In fact, the defendant provides that consumers 
are to enjoy the benefits of the regulated roaming tariff only if they 
make a special declaration to the defendant. By so acting, it is 
REQUEST FOR A PRELIMINARY RULING OF 4. 6. 2019 — CASE C-539/19 
 
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submitted, the defendant is in breach of Article 6e(3) of the Roaming 
Regulation. 
The applicant therefore requests … that the defendant be ordered, on 
pain of incurring statutory penalties, to cease and desist, within the 
scope of business activities on the internet relating to consumers within 
the scope of existing mobile communications contracts (apart from 
consumers with the ‘Roaming Basic’, ‘World Zones Pack’ and/or 
‘Mobile Internet International’ tariffs), from making the use of the 
regulated roaming tariff (Roam Like At Home), in force as from 
15 June 2017, conditional on consumers making a corresponding 
declaration to the defendant (in particular by sending an SMS with the 
word ‘YES’ to the number 65544 and/or making a switch via the O2 
app). 
5. The defendant takes issue with this and claims that, with the 
application of the Roaming Regulation, a distinction is to be made 
between two types of roaming tariffs: regulated roaming tariffs and 
alternative roaming tariffs. Regulated tariffs, it submits, are standard 
tariffs, with which no surcharges on the domestic end customer tariff 
may in principle be imposed. In addition, mobile communications 
operators can also provide alternative roaming tariffs, with conditions 
differing from the domestic end customer tariff. The Roaming 
Regulation indisputably requires automatic application of the ‘Roam 
Like At Home’ tariff for customers who were already on the regulated 
roaming tariff before 15 June 2017. However, the obligation to switch 
over automatically under Article 6e(3) of the Roaming Regulation 
does not apply [Or. 6] to customers who were on an alternative tariff 
on 15 June 2017. 
II. The question raised concerns the interpretation of secondary [EU] law. The 
clarification thereof is relevant to the ruling to be made in the present case, 
since the success of the form of order sought by the applicant … depends on 
the interpretation of Articles 6a and 6e(3) of the Roaming Regulation, which 
regulates the abolition of end customer roaming surcharges. As the 
defendant has not yet switched all customers who were on an alternative 
tariff on 15 June 2017 to the ‘Roam Like At Home’ tariff, the suspected 
fault condition persists. It was not resolved for instance with the passing of 
the key date of 15 June 2017. 
1. The applicant is entitled to make the … claim for injunctive relief 
sought if Articles 6a and 6e(3) of the Roaming Regulation require an 
automatic switch-over of contracts to the regulated ‘Roam Like At 
Home’ tariff as contemplated in Article 6a of the Roaming Regulation 
not only for customers who already had a regulated tariff on 15 June 
2017, but also for customers who were on a special, so-called 
alternative roaming tariff on the key date. 
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2. The question of whether the automatic switch-over to the regulated 
tariff under Article 6a of the Roaming Regulation concerns only 
contracts of customers who hitherto had a regulated tariff or whether 
Article 6e(3) of the Roaming Regulation requires an automatic switch-
over of contracts also for those customers who were on a special, so-
called alternative roaming tariff has — as far as can be ascertained — 
not yet been resolved by any of the higher courts. No opinions in the 
legal literature are to be found in this regard either. There are, 
however, diverging views expressed by the European Commission, on 
the one hand, and, on the other, by the Federal Government of the 
Federal Republic of Germany and the Federal Network Agency as the 
national regulatory authority within the meaning of Article 16 of the 
Roaming Regulation. [Or. 7] 
(a) The European Commission states the following on the website of the 
European Union under the heading ‘Roam Like At Home: Frequently 
Asked Questions’ […] 
‘8. I already have a particular roaming tariff plan which I have 
specifically chosen (for instance: I pay a bit more than the EU 
regulated roaming price in the EU, but I have very good prices 
when roaming in the US and Canada where I often travel). Can I 
keep it after 15 June 2017? 
Yes. Your operator will contact you ahead of 15 June 2017 and 
ask you if you want to keep your specific roaming tariff. If you 
confirm, you will keep it. If you reply negatively or do not reply, 
you will be switched automatically to the new roam like at home 
rules.’ 
The applicant’s representative subscribes to the view taken by the 
Commission and additionally states that, according to the wording of 
Article 6e(3) of Regulation (EU) No 531/2012, the regulated tariffs 
provided for in Articles 6a and 6b are specifically to be ‘automatically’ 
applied to ‘all existing and new roaming customers’. Therefore, 
absolutely no distinction is made between those ‘existing’ customers 
who used a regulated tariff before 15 June 2017 and those ‘existing’ 
customers who used an alternative tariff before 15 June 2017. This 
interpretation is also consistent with the spirit and purpose. The 
legislature envisages that consumers should fundamentally benefit 
from the regulated roaming tariff. Only if they actively opt for an 
alternative tariff should that tariff [Or. 8] be taken into consideration. 
The fact that consumers have opted for the alternative tariff when the 
regulated tariff was still much less attractive does not support the 
conclusion that this weighing-up decision would be made in the same 
way today. 
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(b) By contrast, on 22 August 2017, the Federal Government responded to 
an inquiry as follows: 
‘Mobile communications operators must automatically switch all 
customers who have a regulated tariff (formerly euro tariff) to 
the regulated RLAH (Roam Like at Home) tariff. Customers with 
alternative tariffs must be informed that, as from 15 June 2017, 
the regulated RLAH tariffs apply and it is possible to switch from 
an alternative tariff to the regulated RLAH at any time within one 
day and at no cost’ …. 
On its website, the Federal Network Agency also replies as follows to 
the question ‘Will my contract be automatically switched to Roam 
Like At Home on 15 June 2017?’: 
‘This depends on whether you have opted for an alternative tariff 
or use a regulated tariff. If you use an alternative tariff, your 
mobile communications operator will inform you of the start of 
RLAH and the associated advantages. You can switch (back) to a 
regulated roaming tariff free of charge at any time.’ 
The view taken by the Federal Government and Federal Network 
Agency is shared by the defendant, which is of the opinion that, 
according to the wording and scheme of Article 6e(3) [Or. 9] of the 
Roaming Regulation, the obligation automatically to switch existing 
contracts applied only to regulated tariffs, and not to alternative tariffs. 
The existence of an obligation automatically to switch alternative 
tariffs is, it submits, also undermined by the spirit and purpose of the 
Regulation. Alternative roaming tariffs usually involve conditions 
which have been deliberately selected by the consumer on the basis of 
his individual use behaviour and are advantageous thereto in 
comparison with a regulated roaming tariff (for example because he is 
a frequent user in certain countries and has selected his roaming tariff 
in liner with that use). If the defendant were automatically to switch 
alternative roaming tariffs tailored to the individual needs of the 
customer to the regulated roaming tariff, the customer would be 
deprived of those specifically chosen advantages without his consent. 
The customer’s contractual freedom would thereby be adversely 
interfered with. However, the defendant’s customers on alternative 
tariffs are able to switch to the regulated tariff at any time within one 
working day. The defendant also reminds them of that possibility, as 
provided for in Article 14(3) of the Roaming Regulation. The fact that 
the legislature configured Article 6e(3) of the Roaming Regulation in 
relation to the alternative tariffs as an ‘opt-in’ provision and 
specifically did not want to compel mobile communications operators 
to make an automatic switch-over is also, it is submitted, made clear 
by the new Article 5a of the Roaming Regulation introduced in 
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December 2018. 1 The revision introduces, inter alia, a maximum 
charge for ‘regulated intra-EU communications’, which applies to 
regulated tariffs, but not to alternative tariffs. The new Article 5a(3) 
compels mobile communications operators automatically to switch an 
existing customer on an alternative tariff to a regulated tariff if the 
alternative tariff exceeds the maximum charge and the customer does 
not state that he would like to keep the alternative tariff. Article 5a(3) 
therefore contains an ‘opt-out provision’. If the legislature had 
intended, in Article 6e(3), likewise to establish an obligation for 
[Or. 10] mobile communications operators automatically to switch 
existing customers to alternative tariffs, it would also have provided an 
‘opt-out provision’ here. 
III. It is a matter for the Court of Justice to rule on which interpretation is to be 
followed, for which reason a preliminary ruling is sought … 
 
1 Translator’s note: contrary to what the original German text states, the new Article 5a referred 
to appears to be that in Regulation (EU) 2015/2120 of 25 November 2015 (OJ 2015 L 310, p. 1), 
as amended by Regulation (EU) 2018/1971 of 11 December 2018 (OJ 2018 L 321, p. 1).