May 22, 2022

Nintendo’s eShop Pre-Order Policy is Illegal

As reported by Eurogamer, Nintendo’s eShop pre-order policies have been to court in order to discuss their legalities.

As the current policy stands, Nintendo prevents costumers from cancelling a pre-order as soon as it has been made. German and Norwegian consumer authorities have tried to make this practice illegal. Frustratingly, following a German court ruling in Nintendo’s favour, the case has been dismissed.

Initially, the Norwegian Consumer Council had raised concerns over the practice back in early 2018. The NCC claimed these policies were, in fact, a breach of European law.

European costumers have the right to cancel a pre-order at any point prior to a game’s release. However, the eShop makes users waive this right before any purchases can be made. The eShop states during the purchase of any pre-orders;

“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”.

And, as the NCC argued back in 2018;

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

That was back in 2018, however.

Nintendo Continues to Fall to the Darkside

In 2020, the German VZBV has joined the FCC to bring the case in front of the Regional Court of Frankfurt. (The VZBV is the Federation of German Consumer Organisations).

As reported by Press Fire, the court has ruled in Nintendo’s favour. Press Fire noted that;

“The Frankfurt District Court has relied on the rather unfortunate notion that consumers enter into a two-stage contract that starts with the delivery of a non-playable pre-ordered product. Thus, the restrictions on the right of withdrawal were legal”.

Whilst we all may not agree with such a stance, the NCC has vowed to appeal against the ruling. Press Fire stated that the NCC;

“disagrees with the decision by the Oberlandesgericht Frankfurt. [We] still believe that the consumer has the right to exercise the right of withdrawal on digital advance orders, despite pre-loading before launch.

What is downloaded before launch is useless before it is unlocked on launch day. Delivery cannot be said to have begun according to the rules of the Undoing Act by pre-loading the game on the consumer’s machine”.

Nintendo’s eShop Doesn’t Hold up to Competitor’s Alternatives

Press Fire conducted an independent survey examining the different digital stores. Nintendo was the only store (out of them, Xbox, and PlayStation) to not offer cancellations on pre-orders.

Nintendo pleaded its defence under EU consumer law Article 16 of Directive 2011/83. This law deals with the delivery of digital content that does not come on a handheld medium. For instance, a disc or memory card.

Article 16 states that the right of withdrawal automatically disappears if;

“the performance has begun with the consumer’s prior express consent and his [or her] acknowledgement that he [or she] thereby loses his [or her] right of withdrawal”.

Whilst both the NCC and VZBV have appealed against the ruling, it could take up to a year and a half before the appeal passes through courts. Still, we will be sure to inform you of any updates when and if they happen.


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