German court sides with Nintendo over claim its eShop pre-order practices are illegal


But an appeal is in the works.

An attempt by German and Norwegian consumer authorities to declare Nintendo’s eShop pre-order practices illegal under European law (Nintendo prevents consumers from cancelling a pre-order once made) has been dismissed, with a German court ruling in Nintendo’s favour.

The Norwegian Consumer Council initially raised concerns over Nintendo’s digital sales practices back in February 2018, claiming the company was in breach of European law.

Ordinarily, European consumers have the right to cancel a pre-order at any time before a game’s release, but Nintendo insists eShop users waive that right prior to any purchases by ticking a box stating, “I consent that Nintendo begins with the performance of its obligations before the cancellation period ends. I acknowledge that I thereby lose my right to cancel.”

“According to the right of withdrawal laid down in the Consumer Rights Directive,” the NCC argued, “such terms are illegal. Until the game can be downloaded and launched, the seller cannot prohibit the consumer from cancelling their pre-order.”

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All eShop users must waive their right to withdrawal at the time of a pre-order purchase.

Since then, the Norwegian Consumer Council has joined forces with the German VZBV (Federation of German Consumer Organisations) to bring the case before the Regional Court of Frankfurt. However, just before Christmas, as reported by Norwegian gaming website Press Fire, the court announced its ruling in Nintendo’s favour.

As Press Fire notes, Nintendo’s defense cited a European law stating a consumer’s right of withdrawal automatically disappears if “the performance has begun with the consumers prior express consent and his acknowledgment that he thereby loses his right of withdrawal”. It further argued that its contract with a user was fulfilled at the time of purchase, as pre-orders immediately receive a pre-load version of a game (even though that version might not be playable for months) – an interpretation the court ultimately agreed with.

Both the German VZBV and Norwegian Consumer Council have appealed the decision, suggesting that because the pre-load is useless before it unlocks on launch day, delivery cannot be said to have begun. However, it could take up to a year and a half before the appeal passes through court and a ruling is made.



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