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Greenberg Traurig Germany successfully fends off action by Wettbewerbszentrale before Federal Supreme Court on behalf of Vivawest

Provision of a cable connection under the lease agreement still possible

Greenberg Traurig successfully defended Vivawest, one of the largest housing companies in Germany, against an action brought by the Wettbewerbszentrale (“The Competition Centre”) before the German Federal Supreme Court (BGH). Wettbewerbszentrale, as the plaintiff, said it believed a broadband connection provided as part of the lease agreement must be terminable separately from the lease agreement. Wettbewerbszentrale is the largest self-regulatory institution operating in Germany, and across borders, to enforce the law against unfair competition.

The court ruled: Landlords may continue to provide apartments with a cable TV connection as part of a lease agreement and pass the costs incurred on to tenants as operating costs. Under current law, tenants do not have the option of terminating the use of this connection and no longer paying the pro rata operating costs.

An amendment to the Telecommunications Act (TKG), which will come into force on December 1, 2021, does introduce for the first time an opt-out right for tenants to terminate telecommunications services provided under a lease agreement if the lease has already been in place for at least 24 months. However, the BGH also pointed out that this right will not apply to existing facilities until July 1, 2024, if the costs incurred are allocated as operating costs – as it was the case with Vivawest.

Background: After the action had already been rejected by the Essen Regional Court and the Hamm Higher Regional Court, each with different reasons, the Federal Court of Justice (BGH) now ruled in the third instance and rejected the appeal. The Greenberg Traurig team successfully represented Vivawest in all three instances. Peter Rädler (Mennemeyer & Rädler) represented Vivawest before the BGH.

About Greenberg Traurig: Greenberg Traurig, LLP (GT) has approximately 2300 attorneys in 40 locations in the United States, Latin America, Europe, Asia, and the Middle East. GT has been recognized for its philanthropic giving, diversity, and innovation, and is consistently among the largest firms in the U.S. on the Law360 400 and among the Top 20 on the Am Law Global 100. The firm is net carbon neutral with respect to its office energy usage and Mansfield Rule 4.0 Plus Certified.