On 20 February 2023, the Regional Court of Hanover dismissed the remuneration claim of an online coaching provider because the contract was void without ZFU approval in Germany. The ZFU (Zentralstelle für Fernunterricht) is the German Authority for e-learning or distance Learning providers who often need a ZFU-Approval against the German FernUSG = the German law for e-Learning – “Fernunterrichtsschutzgesetz” https://www.gesetze-im-internet.de/fernusg/BJNR025250976.html). This is because, contrary to what the coaching entrepreneur thought, entrepreneurs can also be protected as participants within the meaning of the FernUSG. Since his coaching training course lacked ZFU approval, the contract was invalid under §§ 7, 12 FernUSG. This is because, according to the Regional Court of Hanover, the legislator of the Distance Learning Protection Act (§ 7 in conjunction with § 12 FernUSG) deliberately did not limit the group of participants to consumers only.
The consequence of this is that participants can therefore revoke online courses requiring approval (provided the other requirements are met) or, in the absence of ZFU approval, under certain circumstances even reclaim payment. International e-learning providers who have participants from Germany should therefore check whether they need to apply for approval from the Central Office for Distance Learning (ZFU.de) in accordance with the FernUSG: This is because if a B2B online course (e.g. “certificate course” or “online training”) is also applicable to self-employed persons and entrepreneurs as participants under certain circumstances as distance learning within the meaning of the Distance Learning Protection Act (FernUSG), the authorisation requirement under §§ 7, 12 FernUSG also applies to foreign providers who have customers in Germany, and the prohibition of circumvention under § 8 FernUSG also applies here. Courses requiring approval without such approval from the ZFU are void according to § 7 para. 1 FernUSG and participants can terminate without notice. Until now, many providers thought they could circumvent the long-standing law by offering courses in Germany only to companies and self-employed persons, but according to this case law, this does not lead out of the authorisation requirement. Because of the prohibition of circumvention under § 8 FernUSG, it is also uncertain whether foreign providers can escape the licensing obligation with the strict requirements of the FernUSG with a choice of law and jurisdiction agreement (however, the wording in the law is strange and only speaks here of “another legal form”, which is supposed to be prohibited – so it is unclear from the wording whether this is also supposed to include another choice of law and jurisdiction).
2 Furthermore, the Regional Court of Hanover clarified in its judgement of 20.02.23: A learning assessment within the meaning of § 1 FernUSG also exists if the participants only have the opportunity to ask individual questions about the learning content orally or in chat online or in the context of video calls and webinars.
Full text of the reasons for the judgement: Begin citation————–
Regional Court of Hanover
JUDGMENT Delivered on 20.02.2023
13 S 23/22
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463 C 11294/20
In the legal dispute
XXX
– Defendant and Appellant –
counsel of record:
xxx
Reference: Z-55/20-bp
against
XXX – Plaintiff and Appellant –
Legal representative:
XXX
Reference: XXX
the Landgericht Hannover – 13th civil chamber – by the presiding judge at the
Regional Court XXX, the Judge at the Regional Court XXX and the Judge at the Regional Court XXX on
the oral hearing of 30.01.2023:
On the appeal of the defendant, the judgement pronounced on 13.07.2022 of the
of the District Court of Hanover – 463 C 11294/20 – is partially amended and
reformulated in its entirety as follows:The action is dismissed.
The costs of the legal dispute at both instances shall be borne by
the plaintiff and appellant.The judgment is provisionally enforceable.
The appeal is not admitted.
The value in dispute for the appeal proceedings is set at the
value of up to 1,500.00 euros.Grounds:
I.
The plaintiff asserts a claim against the defendant for payment of remuneration for online coaching in the field of photography.
On 11 February 2020, the parties agreed by way of a video conference on a contract term of twelve weeks at a remuneration of EUR 3,000.00 net, to be paid in three equal instalments. The plaintiff was represented by XXX when the contract was concluded.
According to the record of the conclusion of the contract, the scope of services was described by her as follows.
Among other things, it described the scope of services as follows:
“You will go through the programme via a learning platform and you will be given regular tasks so that you can get closer to your goal every day and, in addition, you will have access to our you will then have access to our Facebook group explicitly created for this purpose. In addition we will offer a weekly live seminar, which will again take place via Zoom, where we’ll discuss all the steps you’re taking, and we’ll also be able to monitor we can monitor your performance and thus help to ensure that you follow the the steps described in the terms of reference.”
With regard to the details, reference is made to Annex K5 (USB stick, p. 111).
By letter of 12 February 2020, the defendant declared the revocation. With regard to the details, reference is made to Annex B1 (file, p. 86).
With the action, the plaintiff claimed the first instalment in the amount of 1,190.00 euros as a partial claim and pre-court legal costs in the amount of 169.50 euros, reminder costs in the amount of 10.00 euros and information costs in the amount of 15.00 euros.
The Local Court, to whose judgement reference is made because of the submissions of the parties at first instance, the findings made and the motions filed, granted the claim with the exception of the reminder and information costs.
– with the exception of the reminder and information costs. The defendant was not entitled to a right of withdrawal because it was not a consumer. The Distance Learning Act was not applicable because monitoring of the learning success was not owed. It was also irrelevant whether the product was overpriced. It could not be established that the decisive limit of § 138 BGB had been reached for lack of sufficient explanation.
The defendant’s appeal is directed against this. It is of the opinion that it qualifies as a consumer. Furthermore, the Distance Learning Act is applicable, which does not distinguish between entrepreneurs and consumers. Moreover, there is a complete disproportion between the value of the training and the value of the book which the plaintiff publishes about its training content at a price of 5.99 euros.
The defendant applies with modification of the judgement of the District Court of Hanover of
13.07.2022 – Ref. 463 C 11294/20 – to dismiss the action.The plaintiff applies for
dismiss the appeal.
He defends the contested judgment. In particular, the Distance Learning Act is not applicable. A contractual claim for the performance of examinations did not exist and had not been conclusively presented. The mere fact that in the context of the
The mere fact that oral questions on the coaching content could be asked during the Zoomcalls did not constitute a learning test in the sense of the Distance Learning Act. There was only a check on how much time was invested. This was done automatically by the learning programme itself by working through the individual modules independently and then automatically activating them. Whether the contents have been internalised is not a prerequisite for the further module to be activated. The activation was only linked to the time required.With regard to the parties’ submissions in detail, reference is made to the exchanged pleadings together with the annexes.
II.
The admissible appeal – which in particular is admissible and has been filed in due form and time – is well-founded.(1) The plaintiff has no claim against the defendant for payment under § 611 (1) BGB in connection with the contract of 11 February 2020.
The contract in question is void pursuant to §§ 125, 126 BGB due to a breach of the written form requirement under § 3 para. 1 FernUSG in the version applicable until 31 December 2020.
a) The scope of application of the FernUSG is open.
aa) Pursuant to § 1 FernUSG, distance learning within the meaning of this Act is the paid imparting of knowledge and skills on a contractual basis, where the teacher and the learner are exclusively or predominantly physically separated and the teacher or his representative monitors the learning success. The teacher or his/her representative should be able to make use of written corrections as well as accompanying teaching events or other means. Therefore, oral control during accompanying direct instruction can also be considered as sufficient monitoring of learning success, e.g. through question and answer. It is sufficient if individual guidance of the learner is provided. Monitoring of the learning outcome in accordance with § 1 Para. 1 No. 2 FernUSG is already given if the learner has a right under the contract, e.g. in an accompanying teaching event, to individual monitoring of the learning outcome by means of oral questions on the learned material by the teacher or his/her representative.
the lecturer or his or her representative by asking the respective lecturer questions on his or her own understanding of what has been learned so far, in order to bring about a personal learning control as to whether what has been learned so far has been understood correctly and is
“sits” (BGH, judgement of 15.10.2009 – III ZR 310/08, BeckRS 2009, 86781, beck-online, marginal no. 16 et seq.).bb) Measured against this, the contract concluded between the parties is a distance learning contract.
According to its focus, the contract is to be classified as a distance learning contract. In this respect, according to the service description, monitoring of the learning success is owed. In this respect, there is explicit mention of monitoring the level of performance in order to help ensure that the performance specification is complied with. Thus, according to the objective recipient’s horizon (§§ 133, 157 BGB), the defendant was granted a right to have its acquired knowledge tested and to be able to ask questions in this respect, at least in the context of the live seminars. On the other hand, a final examination is not required. It is also not
It is also irrelevant whether the plaintiff actually intended to fulfil the contract in accordance with the – according to the interpretation of the contract – agreed content.It is irrelevant whether the defendant concluded the contract as an entrepreneur or as a consumer. The FernUSG is also applicable to entrepreneurs in the sense of § 14 BGB.
The regulation also applies in b2b relationships (Tamm/Tonner/Brönneke, Verbraucherrecht, § 2 Die gesetzlichen Definitionen der Begriffe Verbraucher und Unternehmer Rn. 31, beck-online). The participant is protected in a similar way as a consumer (BeckOGK/Alexander, 1.11.2022, BGB § 13 marginal no. 169.1; BeckOK BGB/Martens,
63rd ed. 1.8.2022, § 13, marginal no. 19, beck-online), without having to be a consumer within the meaning of § 13 BGB. The FernUSG already existed before the introduction of the concept of consumer within the meaning of § 13 BGB. The term “subscriber” is not limited to consumers in this sense.The requirements for a teleological reduction are not met. There are no indications for an unplanned over-regulation. Insofar as the explanatory memorandum to the Act refers to consumer protection, this does not exclude application to entrepreneurs within the meaning of section
§ 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), which are also end consumers with regard to the transfer of knowledge. In this respect it is consumer protection law in the broad sense (Tamm/Tonner/Brönneke, Verbraucherrecht, § 1 Verbraucherschutz und Privatautonomie
marginal no. 4, beck-online). The legislator also did not take the opportunity to restrict the group of persons protected by the FernUSG by not replacing the term “subscriber” with the term “consumer” in the context of amendments to the FernUSG.b) The contract is void pursuant to § 3 para. 1 FernUSG old version in conjunction with §§ 125, 126, 139 BGB. It was not concluded in writing but by telephone. Insofar as the contract contains further elements (including website revision), it is void in its entirety pursuant to § 139 BGB.
c) In the absence of an exchange of services, the plaintiff also has no claim under the law of enrichment. 2.
The subsidiary decisions are based on §§ 91 para. 1, § 708 no. 10, 713, 544 para. 2 no. 1 ZPO. The determination of the amount in dispute is based on § 3 ZPO in conjunction with § 47.1 GKG.
Legal remedy
…..” (not yet legally binding)
————————End quote from the reasons for the judgement
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#Distance learning, general terms and conditions for online courses, e-learning, FernUSG, online education, ZFU law, obligation to obtain authorisation under the FernUSG.
By Stefanie Hagendorff – IT specialist lawyer – Compliance, Data Privacy and Cyberlaywer in Germany
Lawyer Hagendorff – Specialist lawyer for IT law and data protection law based in Friedberg near Frankfurt/Main
Germany, Stefanie Hagendorff
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