Expert assessment by Professor Di Fabio, former justice on the Federal Constitutional Court, determines: Frequency extension without consideration of the fourth network operator would be unconstitutional

Montabaur, 21 February 2024. The launch of the 1&1 mobile network has filled the gap left behind by the closure of E-Plus in 2014, and Germany once again has four providers. 1&1 is the first provider in Europe to rely fully on the new Open RAN technology — cloud-native, independent of specialised network providers such as Huawei and ready for real-time applications.

Just like any other network operator, 1&1 requires adequate frequency bandwidths if it is to operate its network competitively and exploit fully the innovative power of the modern network architecture. This is indispensable for the provision of state-of-the-art services to its customers. As of January 2026, the regular allocation cycle of the Federal Network Agency (BNetzA) will cause frequencies to become available for reallocation to network operators.

In a recent consultation paper, the BNetzA for the first time considered a so-called extension of existing frequency use rights to Deutsche Telekom, Vodafone and Telefónica instead of the usual auction. Being a new entrant, 1&1, on the other hand, would not be granted access to additional frequencies.

An expert assessment commissioned by 1&1 and prepared by the renowned constitutional law scholar and former Federal Constitutional Court justice Professor Udo Di Fabio (doctorates in law and political science) entitled ‘Frequency allocation as a constitutional issue — equal opportunities, competition and protection of legitimate expectations (German)’ unambiguously determines that the extension of frequencies solely in favour of the established network operators would violate constitutional law and unlawfully discriminate against 1&1. The opinion notes that the allocation of frequencies, being a scarce commodity, and the regulation of telecommunications networks are bound by constitutional law. The strictly equal treatment of all market participants is firmly anchored in the German Constitution, EU law and the Telecommunications Act and obligates regulators to ensure a fair and pro-competitive award procedure.

‘The auctioning of the first 5G frequencies to a new entrant in 2019 led to additional regulatory responsibility. Extending the frequency use rights of the established network operators without taking 1&1 into consideration as a new entrant would violate the principles of the protection of legitimate expectations and equality and would be unconstitutional from several points of view’, noted Professor Udo Di Fabio.

The assessment finds that a unilateral extension of frequency use rights for the established network operators for five or eight years could not be classified merely as a transitional decision; it would instead constitute a misuse of discretion.

‘Our aim as the fourth network operator is to stimulate competition and generate innovations. We cannot achieve this goal unless, just like any other network operator, we have adequate frequency resources. Without them, we will be unable to provide our customers with service in line with the market and to exploit the advantages of the new Open RAN technology’, stated Ralph Dommermuth, CEO of 1&1 AG. ‘We are open to alternatives to the tried and tested auction procedure as long as we are treated fairly. All other major European countries such as the UK, France, Poland, Spain and Italy, where four mobile networks are standard, show that four networks can be operated in parallel with the available radio spectrum in Germany.’

About 1&1 AG

1&1 AG is a listed telecommunications provider domiciled in Montabaur. The Company is a member of the United Internet AG corporate group. 1&1 is the first network operator in Europe to operate a fully virtualised mobile network based on innovative Open RAN technology.

In addition to a comprehensive portfolio of mobile communications products, the Company offers broadband lines, most of which are based on 1&1 Versatel’s Germany-wide fibre optic transport network, and added-value applications such as home networking/smart home, online storage, video-on-demand and IPTV.

While the 1&1 brand addresses value and premium segments, the Group’s discount brands appeal to price-conscious target groups.

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