Nintendo Loses Appeal in Switch eShop Pre-Order Cancellations Case

Nintendo has been notorious for sparking debate regarding their approach to consumer rights, most notably to rights regarding pre-orders and refunds. Nintendo’s past policy of not allowing refunds on eShop pre-orders has put them in a bit of hot water over in Europe, with the German Consumer Protection Authority (VZBV), based on concerns raised by the Norwegian Consumer Council, taking the gaming giant to court to settle the dispute in 2018.

Nintendo had been accused of violating Norwegian and EU consumer laws by not allowing cancelation of digital pre-orders at all. The company however argued that their sales contracts were fulfilled when a pre-ordered title had been “pre-loaded” and that they were therefore not required to offer cancellations or refunds on such titles. For context, upon the pre-order of a given title on the Nintendo eShop, players are given a “pre-load” of the game that appears on their Switch home screen. Pre-loaded games are then updated upon the date of a game’s release, allowing players access to their purchase. In January of 2020, Nintendo won the case, pending appeal.

Now, nearly two years after this initial verdict, a German court of appeals has overturned the decision after continued work by the Federation of German Consumer Organizations and the Norwegian Consumer Council.

Here is the summary of the case and its outcome (translated from German), as reported by Nintendo Life:

Nintendo had already offered video games for download in its e-shop before the official release date. The download usually included a software-comprehensive “pre-load” of the game as well as an icon displayed on the game console. The unlocking of the game took place via update only on the official start date. Such online purchases can usually be revoked within 14 days without giving reasons.

However, Nintendo had excluded the right of withdrawal and relied on a legal exception. However, the prerequisites for the right of revocation were not met, as the download made available after the pre-order did not yet contain any usable game. Until the release date, the game is worthless for the buyers and the contract of Nintendo is not fulfilled in any way.

…The Regional Court of Frankfurt am Main had dismissed the vzbv’s action at first instance. With their appeal to the Higher Regional Court of Frankfurt, the consumer advocates have now been successful. At the hearing, after discussing the legal situation, the judges had advised Nintendo to recognise the vzbv’s claim for injunctive relief as justified. The company complied with this. In the acknowledgment judgment, the court upheld the vzbv’s action in its entirety. As is customary in such judgments, the acknowledgment judgment does not contain any grounds for decision.

Nintendo has accepted the outcome of the appeal.

Nintendo’s eShop policy regarding pre-orders was changed back in September 2020, following the initial decision by German courts. Pre-orders placed more than seven days ahead of a game’s release date are allowed to be canceled directly on the eShop or through one’s Nintendo Account. Currently, Nintendo’s eShop still has consumers withdraw their right to cancel pre-orders within seven days of a game’s release, but this particular element of the company’s pre-order policy is one overturned by this week’s decision by the German appeals court. Nintendo will likely change their policies again in the near future.

Personally I have not experienced any issue with Nintendo eShop’s pre-order policy, but I can definitely understand why the inability to cancel would make gamers frustrated. What do you think of Nintendo’s loss in court? Have you been affected by Nintendo’s eShop pre-order cancelations policy in the past? Let us know in the comments below.

Source: vzbv.de (via pressfire.no, Nintendo Life)

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