Nintendo loses court appeal over European eShop refunds

Consumers can now cancel digital pre-orders

The Norwegian Consumer Council has won its appeal against Nintendo for its refusal to allow cancellations or refunds on Nintendo eShop pre-orders, a result that could have far-reaching ramifications across Europe.

As reported by Norwegian site Pressfire.no, the Norwegian Consumer Council, the Norwegian Consumer Agency, and equivalent bodies in Germany have won an appeal at the Oberlandesgericht Frankfurt (Frankfurt Higher Regional Court), with the court ordering that Nintendo must “cease and desist” its current practices regarding pre-orders.

Until now, customers pre-ordering a digital game on Nintendo eShop face significant restrictions on cancelling their orders. Although Nintendo says it provides a statutory 14 days to cancel, it adds that “This statutory right to cancel expires earlier in respect to contracts as regards the supply of digital content which is not supplied on a tangible medium if we have begun with our performance after you have expressly consented that we can begin with our performance before the cancellation period ends and you have acknowledged that you thereby lose your right to cancel.”

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The Legend Of Zelda: Breath of the Wild
The Legend Of Zelda: Breath of the Wild. Credit: Nintendo

Nintendo has argued that it has “begun with our performance” when the order has been placed by asking customers to check a box that acknowledges that to be the case.

However, Pressfire reports that “the court says that Nintendo’s interpretation of the law, where the company believes the ‘performance’ of the product has started when someone downloads parts of the game, is not correct” (via online translation).

The Frankfurt court has also said that “the data that is downloaded after the order is completed is not a working game” and seems to imply that Nintendo’s definitions for having begun its service no longer hold.

Metroid Dread action screenshot
Metroid Dread. Credit: MercurySteam

The ruling ordered Nintendo to “stop the practice of requiring consumers to waive the right to cancel their pre-order within 14 days” and laid down some hefty consequences if the company did not do so. These included fines of “up to” €250,000 (£212k) per violation or “imprisonment for up to six months for the general manager if this is not taken into account.”

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The ruling overturns a previous hearing that had come down on Nintendo’s side.

Although the decision was legally binding only in Norway, because the country is part of the EEC and observes and implements EU consumer laws, the ruling will carry weight throughout the EU.

Nintendo has immediately implemented the changes and now provides a guide on cancelling pre-orders. It seems the UK, now sadly a non-EU country, will also benefit from the ruling, with the change reflected on Nintendo’s .co.uk domain.

Elsewhere, Witcher 3 spin-off card game Gwent is getting an update adding a dozen new cards to the game, plus balance changes. At the same time, the 20th anniversary of PS2 classic Ico has been marked with a look back at its earliest development stages.

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