Telecommunications Act (Germany)
| Basic data | |
|---|---|
| Title: | Telecommunications Act |
| Abbreviation: | TKG |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Special administrative law |
| References : | 900-15 |
| Original version from: | July 25, 1996 ( BGBl. I p. 1120 ) |
| Entry into force on: | August 1, 1996 |
| Last revision from: | June 22, 2004 ( BGBl. I p. 1190 ) |
| Entry into force of the new version on: |
June 26, 2004 |
| Last change by: |
Art. 319 VO from 19 June 2020 ( Federal Law Gazette I, p. 1328, 1365 ) |
| Effective date of the last change: |
June 27, 2020 (Art. 361 of June 19, 2020) |
| Please note the note on the applicable legal version. | |
The Telecommunications Act ( TKG ) is a German federal law that regulates competition in the telecommunications sector .
In addition to regulation, the services offered should also be guaranteed on an ongoing basis. Today's Telecommunications Act ended the federal telecommunications monopoly.
Content of the law
Registration requirement
The provision of telecommunication services is free and only requires registration. A permit is not required ( § 6 TKG). The provider is only obliged to provide permanent reports at the request of the Federal Network Agency .
The Telecommunications Act also regulates the allocation of frequencies, the numbering and also the approval of value-added services using earlier 0190 or current 0900 numbers.
Listening to messages
Unauthorized interception of messages via telecommunication channels is punishable by imprisonment of up to two years or a fine according to Section 148 (1) sentence 1 TKG. Anyone who owns, manufactures, sells or imports inadmissible transmission systems is also punished ( Section 148 (1) sentence 2 TKG). This includes transmission systems that are suitable for transmitting the non-publicly spoken word without authorization. The Telecommunications Act is therefore part of ancillary criminal law .
Market regulation
Part 2 of the law is dedicated to the regulation of the telecommunications market. The principle applies that companies that have "considerable market power " are subject to special conditions imposed by the regulatory authority ( Federal Network Agency ) ( Section 9 TKG).
During the legislative process in 2004 voices became loud, the Community illegality central norms of the government draft alleged. This view has now been confirmed by the infringement proceedings initiated by the EU Commission. In April 2005, the Commission sent Germany a reasoned opinion in accordance with Article 226 EC and set a deadline of June 2005 in order to remedy the Commission's concerns. This deadline has expired without the hastily drafted bill being passed. Against this background, when applying the norms of the TKG, the state authorities are obliged, due to the principle of the primacy of application of Community law, to examine carefully whether the norm applied meets the requirements of the underlying Community law.
The market-regulating provisions of the TKG are increasingly proving to be a major obstacle to the effective further development of the infrastructure (see Next Generation Network ), in particular inhibiting the expansion of the fiber optic network .
The regulation to exclude "new markets" from regulation was controversial ( Section 9a TKG in the version of February 24, 2007). This was also referred to as the "regulatory vacation" for the VDSL network of Deutsche Telekom AG and, following a decision by the European Court of Justice on December 3, 2009 (RS C-424/07), contradicted European law. Section 9a TKG old version was therefore deleted again on April 1, 2011.
privacy
With the change of February 24, 2007, the Telecommunications Customer Protection Ordinance (TKV) is integrated into the TKG. There is also a new regulation to enable telecommunications monitoring with VoIP .
Data retention
On December 31, 2007, several private individuals, accompanied by the data retention working group, lodged a constitutional complaint with the Federal Constitutional Court against several provisions of the Telecommunications Act. Further lawsuits from various persons and institutions followed later. In particular, they object to the retention of personal data from telecommunications customers. The new regulation was passed in a roll call by the Bundestag in November 2007 to implement EU Directive 2006/24 / EC .
In its judgment of March 2, 2010, the First Senate of the Constitutional Court upheld the complaints and declared the offending paragraphs ( § 113a and § 113b TKG) to be null and void due to a violation of Article 10 (1) of the Basic Law . However, the court did not determine that the EU directive was fundamentally incompatible with the Basic Law.
Planned blocking of websites
Parts of the Telecommunications Act were changed for the Act to Combat Child Pornography in Communication Networks , which should allow Internet sites to be blocked . The law was repealed in December 2011.
Changes to consumer protection
Since March 1, 2010, Section 67 (2) TKG provides that operators of 0180 numbers not only have to specify the price for a call from the fixed network to the 0180 number, but also the maximum price for a call from the mobile network. So far, this has not been necessary, it was sufficient to state that mobile phone calls can be charged differently. In the same law, upper price limits for service services (0180 numbers) from fixed and mobile networks were set ( Section 66 (4) TKG in the version applicable from March 1, 2010).
With the amendment of the Telecommunications Act in May 2012, important changes were made for consumer protection. The prices for call-by-call services must be announced at the beginning of the call. In addition, the costs for waiting loops for service numbers are reduced. In addition to the maximum speed, DSL providers will in future also have to specify the minimum speed for data transfer. In addition, the amended law means that mobile phone numbers can now also be taken to a new provider before the contract period expires. Another new feature is that, contrary to previous case law, the customer has the right to terminate the contract if the telecommunications provider can no longer provide the service at the new place of residence after moving ( Section 46 (8) TKG). The amendment to the law was approved by the Bundestag and Bundesrat in February 2012 and the Federal President drafted the law on May 3, 2012.
Right of way
The TKG regulates in §§ 68 to 77e the rights and obligations for the use of land to accommodate telecommunication lines . The authorized users according to the provisions of the TKG can use traffic routes i. S. v. Section 68 (1) TKG free of charge and, under certain circumstances, also use land that is not a traffic route.
Inventory data information
Automated information procedure ( § 112 ): Anyone who provides publicly accessible telecommunications services must immediately save the inventory data in customer files, which the Federal Network Agency can access automatically at any time without the provider becoming aware of it. The Federal Network Agency may only access data from customer files if knowledge of the data is necessary.
Manual information procedure ( § 113 ): Anyone who provides telecommunication services on a business basis or participates in them must, upon request of the responsible bodies in individual cases, immediately provide information about inventory data, insofar as this is for the prosecution of criminal offenses or administrative offenses, to avert threats to public safety or order or for the fulfillment of the statutory duties of the constitutional protection authorities of the federal and the states , the Federal intelligence service or the Military Counter is required.
New regulation in 2013: § 113 TKG was defused with effect from July 1, 2013: If a service provider was previously obliged to provide information about the data criticized by the BVerfG ('has'), since then the provider has only been allowed ('may' ). The obligation to provide information no longer applies. If data continues to be recorded, the following applies: the police and secret services may retrieve personal information from cell phone owners and Internet users, automatically and without major legal hurdles. Internet providers now have to make more data of their users available by court order than before.
In a decision of May 27, 2020 (published on July 17, 2020), the Federal Constitutional Court declared Section 113 of the Telecommunications Act (TKG) and several federal laws that regulate manual inventory data information to be unconstitutional .
literature
- Arndt, Fetzer, Scherer, Graulich (eds.): TKG Telekommunikationsgesetz Commentary , 2nd edition, Erich Schmidt Verlag, Berlin 2015, ISBN 978-3-503-15805-8 .
Web links
- Text of the Telecommunications Act , BMJV
- Data protection assessment of the new telecommunications law (excerpt from the 33rd activity report of the Hessian data protection officer on the amendment of the TKG)
- Problems of the market definition according to the TKG , Juraserv
- Changes in data protection law in TKG 2004 ( memento of October 10, 2004 in the Internet Archive ), Federal Network Agency
Individual evidence
- ↑ Article on the infringement procedure
- ↑ TKGÄndG (PDF; 449 kB)
- ^ The endgame: Next Generation Access - Why Fiber-to-the-Home is not making headway - Richard Sietmann in c't 4/10
- ↑ Rationale for the repeal of § 9a TKG (PDF; 184 kB)
- ↑ Article 3 No. 3 G. v. March 24, 2011 (BGBl. I p. 506)
- ^ Constitutional complaints under Az. 1 BvR 256/08
- ↑ https://www.bundesverfassungsgericht.de/entscheidungen/rs20100302_1bvr025608.html Judgment Az. 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08
- ↑ Federal Ministry of Economics and Technology : Draft of the law to combat child pornography in communication networks ( Memento of May 21, 2009 in the Internet Archive ) (PDF; 133 kB). - Planned changes to the Telecommunications and Telemedia Act .
- ^ Bundestag overturns internet blocks , Frankfurter Rundschau , December 1, 2011
- ↑ New Telephone Law: More Price Security and Transparency (accessed on May 7, 2012).
- ↑ Press release: No premature termination of a DSL connection when moving (BGH judgment of November 11, 2010 - III ZR 57/10)
- ↑ TKG amendment comes into force: New regulations, for example, when moving and porting RA Malte Fuchs to the TKG amendment
- ↑ Federal Constitutional Court - press release No. 27/2012 of May 4, 2012 (accessed on May 7, 2012)
- ↑ Amendment of § 113 TKG
- ↑ Press release No. 61/2020 of July 17, 2020 + resolution of May 27, 2020 - 1 BvR 1873/13, 1 BvR 2618/13 (inventory data information II)
