Switch EShop 2.JPG
Image: Damien McFerran / Nintendo Life

Nintendo's approach to consumer rights in the eShop has always sparked a bit of debate, in particular its approach to pre-orders and refunds. In Europe the policy of not allowing refunds on eShop pre-orders led to legal action, a case that Nintendo won pending appeal. Now, however, the German court of appeal has reversed that decision following work by the Federation of German Consumer Organisations (VZBV) and The Norwegian Consumer Council.

Nintendo had already changed its policy slightly in September 2020, allowing pre-orders more than 7 days ahead of a game's release to be cancelled directly on the eShop or via Nintendo Account pages. For example when we tested this today, selecting a pre-order for a game out in less than 7 days showed 'pre-order and purchase', making clear that there would be no right to an immediate 'voluntary right to cancel'. When you select a game more than 7 days from release you get a lengthy page explaining your right to cancel up to that point, with payment and pre-loading also held off until a week before release. This customer page explains the process for cancelling, too.

This process, in place for over a year, may need further adjustments following the result of the court case, in which Nintendo has apparently accepted the result. Below is a summary of the case and the latest outcome (translated from German).

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.

Currently, the eShop still has you withdraw your statutory right to cancel on pre-orders within seven days of release, but this concept of the service / product being delivered with a pre-load is part of what has been overturned. As a result it's possible that the eShop will be updated to change this policy soon, we'll keep an eye out for changes.

Ultimately, cases like this aim to ensure that digital / download products have the same consumer rights as physical goods; this court result sets us up for potential positive progress in that area for EU Switch owners.

[source vzbv.de, via pressfire.no]