DLA Piper Intelligence

Telecommunications
Laws of the World

Overview of legal landscape

Germany
Germany

In order to promote functioning competition and to ensure a nationwide efficient infrastructure, the telecommunications market in Germany is subject to sovereign regulation mechanisms.

Whilst telecommunications providers had to obtain a licence in the past, the provision of telecommunications is not dependent on the granting of a licence anymore. It is therefore sufficient, in practice, to issue a written notification to the competent regulatory authority.

Applicable national and European legislation aims at opening the telecommunications markets and creating equal competition conditions. The German Telecommunications Act (Telekommunikationsgesetz - TKG) provides the competent Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway (Bundesnetzagentur - BNetzA) with ample regulatory instruments to foster effective competition.

Last modified 5 Oct 2016
Overview
Germany

In order to promote functioning competition and to ensure a nationwide efficient infrastructure, the telecommunications market in Germany is subject to sovereign regulation mechanisms.

Whilst telecommunications providers had to obtain a licence in the past, the provision of telecommunications is not dependent on the granting of a licence anymore. It is therefore sufficient, in practice, to issue a written notification to the competent regulatory authority.

Applicable national and European legislation aims at opening the telecommunications markets and creating equal competition conditions. The German Telecommunications Act (Telekommunikationsgesetz - TKG) provides the competent Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway (Bundesnetzagentur - BNetzA) with ample regulatory instruments to foster effective competition.

Last modified 5 Oct 2016
Laws and regulations

Provisions relating to the regulation of telecommunications are found in various other regulations, as well as the TKG. These include:

  • Telecommunications Surveillance Regulation (Telekommunikations-Überwachungsverordnung - TKÜV)

  • Frequency Fee Regulation (Frequenzgebührenverordnung - FGebV)

  • Frequency Usage Plan Development Regulation (Frequenznutzungsplanaufstellungsverordnung - FrequNPAV)

  • Frequency Protection Contribution Regulation (Frequenzschutzbeitragsverordnung - FSBeitrV)

  • Telecommunications Number Charges Regulation (Telekommunikations-Nummerngebührenverordnung - TNGebV)

  • TKG Transfer Regulation (TKG-Übertragungsverordnung - TKGÜbertrV)

  • Telecommunications Numbering Regulation (Telekommunikationsnummerierungsverordnung - TNV)

  • Telecommunications Emergency Call Regulation (Telekommunikations-Notrufverordnung - TNotrufV)

The key features of the TKG are:

  • Any person operating a public telecommunications network on a profit-oriented basis or providing a publicly available telecommunications service on a profit-oriented basis shall notify the BNetzA without undue delay of their intention to provide, or of their ceasing to provide the activity and/or any changes in their undertaking (cf. Section 6 (1) TKG)

  • The BNetzA has the power to put in place market regulation measures regarding markets which lack effective competition and to impose measures on undertakings having significant market power (cf. Part 2 TKG)

  • Specific customer protection provisions - eg pertaining to price transparency, abuse of phone numbers (cf. Part 3 TKG)

  • Regulation of broadcasting to some extent - eg interoperability of television sets (cf. Part 4 of the TKG)

  • The granting of frequencies, numbers and rights of way (cf. Part 5 TKG)

  • Universal services, which are defined as a minimum set of publicly available services of specified quality to which every end-user, irrespective of his place of residence or work, shall have access to at an affordable price and whose provision to the public as a basic service has become indispensable (cf. Part 6 of the TKG)

  • Provisions pertaining to telecommunications secrecy, data protection and public security. In particular, it regulates that end-users must be enabled to suppress their telephone number (such suppression being excluded in cases of emergency calls) (cf. Part 7 of the TKG)

  • Provisions pertaining to the organisation and powers of the BNetzA (cf. Part 8 of the TKG). In cases of serious or repeated breaches of legal obligations, the BNetzA may, as a measure of last resort, prohibit the undertaking to act in its capacity of a telecommunications network operator or service provider (cf. Section 126 (3) TKG)

Last modified 5 Oct 2016
Regulatory bodies

Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen

Address: Tulpenfeld 4, 53113 Bonn, Germany, P.O. Box 80 01, 53105 Bonn, Germany

Telephone: +49 228 14-0

Website: www.bundesnetzagentur.de/EN

Last modified 5 Oct 2016
Regulated activities

The TKG distinguishes between providers of telecommunications networks and providers of telecommunications services. These categories are then further sub-divided into public and private providers.

A 'telecommunications network' is defined in the TKG as transmission systems and, where applicable, the switching and routing of equipment and other resources in their entirety which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed and mobile terrestrial networks, electricity cable systems (to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed) (cf. Section 3 No. 27 TKG).

A 'telecommunications service' is defined as a service normally provided for remuneration consisting in, or having as its principal feature, the conveyance of signals by means of telecommunications networks, and includes transmission services in networks used for broadcasting (cf. Section 3 No. 24 TKG).

Manufacturers, distributors, owners and importers of certain transmitters and other telecommunications equipment can also be subject to statutory obligations under the TKG (cf. Section 90 (1) TKG).

Furthermore, the BNetzA has regulatory powers in connection with the allocation (including the withdrawal) of numbers (cf. Section 67 TKG).

Last modified 5 Oct 2016
Registration / licensing

As a matter of principle, the provision of telecommunications services does not require a licence. That being said, any person operating a public telecommunications network on a profit-oriented basis or providing a publicly available telecommunications service on a profit-oriented basis is required to notify the BNetzA without undue delay of their intention to provide, or of their ceasing to provide, services and of any changes in his undertaking. Such notification requires a written form (cf. Section 6 (1) TKG).

A notification does not suffice, however, where applicable provisions require an express authorisation for carrying out other commercial activities.

Last modified 5 Oct 2016
Establishment

From a telecommunications law perspective, there is no requirement for a provider of telecommunications services to be domiciled in Germany prior to, or during, the provision of services. However, some provisions require the provision of an address for service in Germany of an authorised agent (for example Section 45p (1) No. 2 TKG). Advice should always be sought from a tax perspective.

Last modified 5 Oct 2016
Interconnection/roaming

Every public telecommunications network operator is required, upon request, to make an interconnection offer to other public telecommunications network operators in order to secure user communication, the provision of telecommunications services and service interoperability throughout the European Union (cf. Section 16 TKG).

The BNetzA has the power to impose obligations, upon request, on public telecommunications network operators that control access to end-users and do not have significant market power to interconnect to their networks with those of other public telecommunications network operators (cf. Section 18 (1) TKG).

In order to promote sustainable competition in the retail market, the BNetzA can require public telecommunications network operators controlling access to end‑users not to treat other public telecommunications network operators differently without objectively justifiable reasons (cf. Section 18 (2) TKG).

Furthermore, the BNetzA has the power to require public telecommunications network operators with significant market power to create the necessary prerequisites for the interoperability of end-to-end communication, including the provision of facilities for intelligent network services and roaming (enabling the use of other operators' mobile networks outside the coverage area of the requesting mobile operator, for the requesting operator's end-users) (cf. Section 21 (2) No. 4 TKG).

Last modified 5 Oct 2016
Consumer protection

The TKG contains numerous provisions pertaining to customer protection which cannot, for the most part, be excluded. These provisions do not exclusively refer to the term 'customer' but also to 'consumers', 'end-consumers', 'end-users', 'subscribers' and 'invoice recipients'.

'User' means a natural person using a telecommunications service for private or business purposes, without necessarily having subscribed to that service (Section 3 No. 14 TKG).

'End-user' is defined as a legal entity or a natural person that is not operating a public telecommunications network or providing a publicly available telecommunications service (Section 3 No. 8 TKG).

'Subscriber' means a natural person or a legal entity that is party to a contract with a provider of telecommunications services for the supply of such services (Section 3 No. 20 TKG).

Specific obligations relating to customer protection include:

  • The requirement to include certain minimum terms in contracts with consumers and other end-users (Section 43a TKG)

  • The initial minimum contract term of a contract with a consumer may not exceed 24 months (Section 43b TKG)

  • The obligation to provide to subscribers itemised billing upon request free of charge (Section 45e TKG)

  • The obligation to take into account the interests of disabled end-users (Section 45 TKG)

  • The availability of number portability to all subscribers (Section 46 TKG)

Last modified 5 Oct 2016
Taxes and fees

On the basis of the TKG, the following regulations pertaining to costs of procedures at the BNetzA have been adopted:

  • FGebV, which relates to fees in connection with spectrum assignment

  • TNGebV, which relates to fees in connection with the allocation of numbers

  • TKGebV, which relates to various fees in connection with:

    • Dialing programs via value added service numbers

    • The administration of satellite systems

    • The assignment of rights of way

Last modified 5 Oct 2016
Enforcement

The TKG provides for various measures which are at the BNetzA's disposal to enforce the applicable telecommunications regulations. These measures include formal information requests, investigations, seizures and the prohibition of business operations.

Breaches of the TKG can also trigger penalties. In general, the TKG distinguishes between Penal Provisions (Strafvorschriften) (cf. Section 148 TKG) and Administrative Fines Provisions (Bußgeldvorschriften) (cf. Section 149 TKG).  The penalties range from fines between EUR 10,000 to EUR 500,000 (eg for the unauthorised use of a frequency).  Other violations can trigger criminal liability which can lead to fines or imprisonment of up to two years (eg for illegal eavesdropping).  In addition, pursuant to Section 206 German Criminal Code (Strafgesetzbuch - StGB), violations of telecommunications secrecy can be punished with a fine or imprisonment of up to five years.

Last modified 5 Oct 2016
Contacts
Jan Pohle
Jan Pohle
Partner
T +49 221 277 277 391
Last modified 5 Oct 2016