The Hamburg Regional Court and the Distance Learning Protection Act (FernUSG) in B2B Contracts
In a recent ruling, the Hamburg Regional Court has made a decision that is causing a stir in the legal landscape. The court sided with the legal opinion of the OLG Celle, declaring a “coaching” contract null and void. This was due to the plaintiff's lack of required authorization under the Distance Learning Protection Act (FernUSG).
This ruling stands in contrast to decisions by the Kammergericht in Berlin and the OLG Frankfurt am Main, which explicitly diverge from this legal opinion. In a previous blog post, I already discussed the diverging case law of the higher regional courts on the FernUSG in B2B contracts. Today's article delves deeper into the Hamburg Regional Court's decision, weighing it against the arguments presented by the Kammergericht in Berlin and the OLG Frankfurt am Main.
The Decision of the Hamburg Regional Court on FernUSG
The Regional Court of Hamburg concluded that the "coaching" contract between the parties was void. This nullity was based on § 7 para. 1 in conjunction with § 12 para. 1 sentence 1 of the Distance Learning Protection Act (FernUSG). The court's reasoning highlighted several important points.
Firstly, it determined that the plaintiff's offering qualified as a distance learning contract. This is crucial because the plaintiff lacked the necessary license under Section 7 para. 1 FernUSG, which inherently leads to the contract's nullity.
A further key aspect of the decision was the applicability of the FernUSG itself. The court explicitly stated that the law applies not only to consumers but also to entrepreneurs. This clarifies a point of contention, as case law has previously held differing opinions on the FernUSG's applicability in B2B relationships.
In this specific case, the Regional Court of Hamburg adopted the legal opinion of the Higher Regional Court of Celle. This view posits that the Distance Learning Protection Act applies regardless of whether the contracting parties are consumers or entrepreneurs. This decision is noteworthy for attempting to establish a clear precedent in previously inconsistent case law and for broadening the FernUSG's scope to a wide range of contracts.
Contrasting Views: Kammergericht Berlin and OLG Frankfurt am Main
In contrast to the Hamburg Regional Court, the Kammergericht in Berlin and the OLG Frankfurt am Main maintain a critical stance regarding the applicability of the Distance Learning Protection Act (FernUSG) in B2B contracts. The Kammergericht in Berlin asserts that the law “can apply precisely only to consumers due to the purpose pursued by the legislator.” It further clarifies that an entrepreneur cannot invoke the provider’s lack of authorization, which would prevent the contract’s nullity. The OLG Frankfurt am Main, for its part, stresses that “the specific circumstances of the individual case must be taken into account.”
Both courts also refer to the historical development of the law. The Kammergericht in Berlin highlights that the term “consumer” in 1975 differs significantly from its meaning in 2023. It argues that, “based on the history of the law, a registered merchant and a formal merchant cannot invoke the protection afforded by the FernUSG, while all others – not registered in the commercial register – could.”
These differing judicial perspectives reveal the complexity of this legal issue and emphasize the need for clarification from the Federal Supreme Court. The varied interpretations of the FernUSG by different courts underline the urgency for a supreme court decision. Such a decision is essential to establish legal certainty in this domain. It remains to be seen how the Federal Court of Justice will ultimately resolve this intricate legal problem.
Conclusion and Outlook
The divergent decisions among the courts clearly indicate the need for the Federal Court of Justice to provide clarity on this matter. Until a definitive ruling, the legal situation remains ambiguous. Consequently, companies should exercise caution when entering into distance learning contracts without the necessary authorization.
This uncertainty not only poses significant legal risks but also has the potential to erode confidence in the jurisdiction and integrity of the distance education marketplace. Furthermore, continued disagreement among courts could prompt companies to adopt alternative contracting models, which might offer fewer protections for contracting parties.
The current situation presents a challenge not just for the involved parties but for the entire industry. Therefore, it is in everyone's interest that the Federal Court of Justice delivers a clear and binding decision promptly.