According to the judgment of the Federal Court of Justice (Bundesgerichtshof, BGH) of 10 July 2025 – III ZR 59/24, clauses governing the incorporation of General Terms and Conditions (AGB) may be subject to legal action if their validity is doubtful in light of the provisions of §§ 307 et seq. of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
Facts of the Case
In 2023, the defendant telecommunications company sent advertising letters by post to a large number of consumers. These materials consisted of three parts: a cover letter, an application form, and a contract summary. The application form contained, among other things, the following clause: “The General Terms and Conditions available on the website shall apply.“
Decision of the Court
The Federal Court of Justice held that a mere reference to GTCs available online – without specifying a particular version – must be understood as a dynamic reference. Such a clause allows the entrepreneur to unilaterally change the contractual terms even after the conclusion of the contract, simply by publishing a new version on the Internet.
According to the BGH, this violates the principle of transparency (§ 307 para. 1 sentence 2 BGB). The consumer cannot clearly determine which version of the GTCs becomes part of the contract, nor under what conditions and to what extent future amendments may be made. In practice, this grants the entrepreneur an unlimited right to make changes, which leads to an unreasonable disadvantage for the consumer.
Recommendations
If you refer to General Terms and Conditions in your contracts, you should use static references – for example: “The General Terms and Conditions in the version dated 01.01.2025 shall apply.” This approach avoids legal uncertainty and ensures a reliable contractual basis.
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