Court confirms right of withdrawal for video game pre-order

• The Higher Regional Court of Frankfurt: The right of withdrawal extends also to pre-ordered digital games that have already been downloaded but are not yet activated.
• The proceedings originate from a complaint by the Norwegian Consumer Council Forbrukerrådet. 
• Nintendo has since changed its order form in the eShop.

The Higher Regional Court of Frankfurt has confirmed the rights of consumers with regard to video games. In a lawsuit filed by the Federation of German Consumer Organisations (vzbv) against Nintendo of Europe GmbH, the judges ruled that the fourteen-day right of withdrawal must also apply if a video game has been purchased in advance but cannot yet be played.

“The right of withdrawal is an important achievement for consumer protec-tion and must not be bypassed by companies. It is positive that Nintendo must grant consumers the right of withdrawal to which they are entitled,” says Rosemarie Rodden, Policy Officer in vzbv’s litigation team. 

Nintendo had been offering video games for download from its eShop before the official release date. The download usually included a “preload” of the game comprising the software and an icon that was then displayed on the game console. An update to unlock the game was not provided until the official release date. Such online purchases can normally be cancelled without stating reasons within fourteen days. 

Nintendo had, however, refused to grant consumers the right to withdraw, invoking a legal exception. However, the legal requirements for being exempted from granting the right of withdrawal were not met, as the download provided after the pre-order was not yet a game that could be played. Since the game remained worthless for consumers until the release date, the contract with Nintendo had not been fulfilled, yet.

The District Court of Frankfurt am Main had dismissed vzbv’s action at first instance. In their appeal to the Higher Regional Court of Frankfurt, the consumer organisation has now been successful. After discussing the legal situation at the hearing, the judges strongly advised Nintendo to recognise vzbv’s claim for an injunction as justified. The company decided to comply. The court ruled in favour of vzbv’s claim to the full extent. As usual, such a judgment following an acknowledgement of the claim by the defendant (Anerkenntnisurteil) does not set out any reasoning by the court.

The Norwegian Consumer Council Forbrukerrådet had already criticised the exclusion of the right of withdrawal in Nintendo’s eShop in 2018 as a violation of the EU Consumer Rights Directive. The shop operator, Nintendo of Europe GmbH, is based in Frankfurt am Main, so the Federal Ministry of Justice and Consumer Protection tasked vzbv with enforcing the law following an enforcement request from the Norwegian Consumer Authority (NCA).

Formally, the ruling only applies to Norwegian consumers. But as Norway has ratified the European Consumer Rights Directive, the legal situation in the country corresponds to that in the EU member states. Meanwhile, Nintendo has adjusted its eShop not only in Norway, but also in Germany.