For operators of broadcasting networks and companies that operate facilities for broadcasting radio and television signals information on notification pursuant to Art. 25 TKG 2003 is available at: https://www.rtr.at/en/m/AnzeigeAGBundEB.
Who is required to notify their general terms and conditions?
According to Art. 25 Par. 1 of the Telecommunications Act 2003 (TKG 2003), operators of communications networks and providers of communications services must issue general terms and conditions which comprise a service description and define the relevant conditions regarding rates and charges. This requirement also applies to any changes in general terms and conditions or in rates and charges (cf. Art. 25 Par. 2 TKG 2003).
The notification requirement pursuant to Art. 25 Par. 1 and Par. 2 TKG 2003 applies to all operators of communications networks and providers of communications services. In particular, these include the following:
Operators of public telephone services (fixed-link and mobile telephony)
Internet service providers
Leased line operators.
There is an exemption to the notification requirement pursuant to Art. 25 TKG 2003 for operators of communication services offering these services to end users exclusively in their business premises (such as call shops or internet cafés).
If, however, a service as defined in Art. 26 Par. 2 TKG 2003 (such as public pay phones) is concerned, the notification requirement remains in force.
Providers of content services (e.g., directory assistance services, erotic hotlines, ring tones and video clips) and of value-added services are exempt from the obligation to notify and publish these conditions.
In what form should operators and providers submit these reports?
Notifications can be sent by e-mail to email@example.com. Please be sure to include the following information as described below:
In the subject line of the e-mail:
Include the full name of the company and an indication that the message contains a notification pursuant to § 25 TKG 2003 (e.g., for notifications of general terms and conditions or service descriptions: "XY GmbH, Notification of general terms and conditions pursuant to Art. 25 TKG 2003"; or for notifications of rates and charges: "XY GmbH, Notification of rates and charges for [product name] pursuant to Art. 25 TKG").
Attach the general terms and conditions, service descriptions or conditions regarding rates and charges to the e-mail as a Word or PDF document.
When submitting changes in general terms and conditions or service descriptions, please send the changes using the change tracking function in Word; in addition please submit a PDF document.
When are the deadlines for notifications?
For initial notifications or notifications of changes which are exclusively in the customer's favor (known as "exclusively favorable changes" in which no part of the general terms and conditions or rates and charges is changed in a way which is detrimental to the customer), it is sufficient to submit the general terms and conditions or rates and charges to the regulatory authority by the time they go into effect (cf. Art. 25 Par. 1 TKG 2003).
On the other hand, in cases where changes in general terms and conditions or rates and charges bring about some form of disadvantage for the customer ("not exclusively favorable changes"; even if only one of many provisions or rates/charges is changed to the customer's detriment), it is necessary to submit the amended terms and conditions or rates and charges to the regulatory authority at least two months prior to the date on which they go into effect. In such cases, therefore, operators and providers are required to comply with a two-month notification period (cf. Art. 25 Par. 2 TKG 2003).
How long does it take the TKK to process notifications?
According to Art. 25 Par. 6 TKG 2003, the Telekom-Control Commission may raise objections to general terms and conditions notified pursuant to Art. 25 Par. 1 and Par. 2 TKG 2003 within a period of eight weeks.
What happens after general terms and conditions are notified?
The regulatory authority (specifically the Telekom-Control Commission, or TKK) reviews whether the notified terms and conditions (but not rates and charges) comply with certain legal provisions. In this context, reviews are based on the Telecommunications Act 2003 and any ordinances issued on the basis of that act (e.g., Itemized Billing Ordinance, Number Porting Ordinance, etc.), Art. 864a and 879 of the General Civil Code (ABGB) as well as Art. 6 and 9 of the Consumer Protection Act (KSchG).
If the general terms and conditions notified do not comply with the legal provisions mentioned above, then the TKK is allowed to raise an objection to such terms by means of an official decision within eight weeks of the notification date (cf. Art. 25 Par. 6 TKG 2003). If an objection is raised, the operator is prohibited from applying the relevant contract terms. The explanations above also apply to notified service descriptions.
In cases where the TKK decides not to raise an objection, the operator or provider is informed in writing.
The notified terms and conditions, service descriptions as well as rates and charges are published on the RTR web site (at www.rtr.at/en/tk/AGB - German only). All the terms are published, however, only after they have been reviewed conclusively by the TKK.
Note: Due to the fact that changes may be necessary after the notification of general terms and conditions, it is advisable to put terms and conditions into effect only after they have been reviewed by the TKK (i.e., once written confirmation has been received).
The regulatory authority reviews notified terms and conditions and service descriptions to ensure that they include certain mandatory information ("minimum content"). Operators and providers can check whether their terms and conditions or service descriptions actually include this minimum content using the "Terms and conditions – Minimum content checklist" (see Appendix/below – German).
It is also advisable to have general terms and conditions checked by a legal expert, in particular to ensure that they comply with consumer protection regulations (see Art. 25 Par. 6 TKG 2003 for more information regarding the basis of these reviews).
What if an operator or provider fails to submit notifications?
Providers and operators which fail to comply with notification requirements (initial notifications or notifications of changes) may be guilty of an administrative offense which is subject to a fine of up to €58,000.
Publication of contract terms
Please note that contract terms can only be published after completion of the TKK procedure pursuant to Art. 25 Par 6 of the TKG 2003.
Tariff conditions have been published since 1 July 2004. General terms and conditions as well as service descriptions have been published since 20 September 2004.
Until 21 February 2012, the Telekom-Control-Commission was not entitled to object the notified tariff conditions. For this reason, the Telekom-Control-Commission did not review the content of the tariff conditions notified up to this date.
Please note: Ruling 2012/03/0067, handed down by the Austrian Administrative Court (VwGH) on 22 October 2012, limited the scope of the review specified in Art. 25 Par. 6 TKG 2003. Since that ruling, when notified of changes to contract terms, the Telekom-Control-Commission reviews only the changes (as well as any parts of the contract terms inextricably linked in content to these changes); the Telekom-Control Commission is no longer entitled to review the contract terms in their entirety when notified about changes.
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