Nintendo’s pre-order cancellation policy is lawful, says German courts

A complaint against Nintendo’s digital sales practices has been dismissed by German courts.

German and Norwegian consumer advocates took Nintendo to court for preventing consumers from cancelling pre-orders. The complaint, which was first lodged in early 2018, said that preventing customers from changing their minds about a pre-order contravened European consumer law.

Nintendo defended this practice by stating that consumers knew that they were foregoing their legal rights as it requires all customers to check a box that states: “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 such terms are illegal,” the Norwegian Consumer Council said via Press Fire (thanks, Eurogamer). “Until the game can be downloaded and launched, the seller cannot prohibit the consumer from cancelling their pre-order.”

The Federation of German Consumer Organisations (VZBV) united with the NCC to dispute Nintendo’s stance and filed a legal challenge in Frankfurt courts. However, the court ruled in favour of Nintendo, stating that the contract between the game publisher and its customers begins at the time the preorder is made and not when the game is released, particularly as customers immediately receive a pre-loaded – if unplayable – version of a game at the time of preordering. 

“The Frankfurt District Court has resorted to the rather unfortunate notion that consumers enter into a two-stage contract that starts with the delivery of a non-playable pre-ordered product,” the consumer agencies said via Press Fire (translated via Google). “Thus, the restrictions on the right of withdrawal were legal.”

The Norwegian Consumer Council and the Federation of German Consumer Organisations have confirmed they will appeal the verdict, although it’ll likely take several years before an appeal verdict is reached.