German court rules Nintendo eShop’s ‘no refund’ policy legal

Throughout 2018, European consumer rights authorities began to take a closer look at Nintendo and its digital eShop refund policies. The Norwegian Consumer Council (NCC) got the ball rolling by saying Nintendo’s strict no-refund policy is against European consumer protection laws. Since Nintendo of Europe is based in Germany, the case was referred to German regulators. The lawsuit has been going on for a while, but now a Frankfurt-based court has sided with Nintendo.

The German consumer protection authority, VZBV, and Nintendo started legal proceedings at the end of 2019. During this stage, Nintendo’s lawyers successfully argued that the eShop’s “no refund” policy was protected by Article 16 of the EU Consumer Law Directive, which allows customers to waive their right to a refund as long as consent is given prior to purchase. When purchasing digital games from the Nintendo eShop, users must check a box that reads “I agree that Nintendo will begin to perform its obligations before the end of the cancellation period. I acknowledge that I thereby lose my right of withdrawal.

Since Nintendo preloads game files immediately upon purchase, this is considered “performance has begun”, thereby moving beyond the point where consumer law would allow a refund. The Norwegian Consumer Council tried to argue that a right to a refund should be allowed until the software can actually be launched.

As PressFire reported, the Frankfurt Regional Court sided with Nintendo in the case, making the “no refund” policy legal. The German Federation of German Consumer Organizations and the NCC appealed the decision, so the case will return to court at some point in 2020.

The NCC has also previously said that if the case fails in Germany, it will be taken to EU courts in a bid to clearly establish the term “enforcement has begun” with respect to digital purchases.

Discuss it on our Facebook page, HERE.

KitGuru says: I think most of us would agree with the NCC here. What’s particularly odd here is that companies like Valve have been forced to allow digital refunds, while home console makers have largely been able to get away with no refund policy. With that in mind, it will be interesting to see where the arguments go from here.

Become a patron!

Timothy C. Mayo