Verdict: The right of withdrawal also applies to video games that have been ordered in advance

The fourteen-day right of withdrawal also applies if a video game has been purchased in advance but cannot be played immediately. This was decided by the Higher Regional Court of Frankfurt am Main at the end of October in a judgment that has now been published (Az .: 6 U 275/19) in a lawsuit brought by the Federal Association of Consumer Organizations (vzbv) against Nintendo Europe.

The console and games manufacturer had offered video games for download in its e-shop even before the official release date. Such offers usually include a so-called pre-load of the game. Only a corresponding symbol is then initially displayed on the game console. The activation will only take place on the official start date via update.

In the EU, online purchases can usually be canceled within 14 days without giving a reason. Nintendo had excluded the right of withdrawal for such games purchased in advance and relied on a statutory exception. According to the vzbv, the prerequisites for the expiry of the corresponding consumer rights were not met because the download provided did not yet contain a game that could be used immediately. The association argued that the game was worthless to buyers when it was released and that Nintendo’s contract was in no way fulfilled.

The Frankfurt am Main regional court had dismissed the vzbv’s action in the first instance. With their appeal to the OLG, the consumer advocates have now had success. The judges had already suggested to Nintendo at the hearing after discussing the legal situation that the vzbv’s claim for injunctive relief should be recognized. The company followed suit.

In the “acknowledgment judgment” that has now been issued the court upheld the association’s action in full. As is customary with such judgments, there is no justification for the decision, which was no longer controversial. Nintendo still has to pay the vzbv 214 euros plus interest and bear the costs of the legal dispute.

The proceedings followed a complaint from the Norwegian consumer protection organization ForbrukerrĂĄdet. This had already criticized the exclusion of the right of withdrawal at Nintendo Europe in 2018 as a violation of the now significantly expanded consumer rights directive of the EU. Since the shop operator is based in Frankfurt, the Federal Ministry of Justice commissioned the vzbv with enforcement after a request from the Norwegian consumer protection authority NCA.

Formally, the judgment therefore only applies to Norwegian consumers. However, due to the implementation of the EU directive, the legal situation in Norway corresponds to that in the member states. In the meantime, Nintendo has not only changed the Norwegian, but also the German version of its online store.


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