FernUSG Coaching: BGH Klärung Vertrag | IT-Medienrecht

OLG Stuttgart: Coaching Contract Null and Void Due to FernUSG Breach

In a recent ruling (OLG Stuttgart, judgment of 01.08.2024 – 4 U 101/24), the Higher Regional Court of Stuttgart declared a coaching contract null and void. The basis for this decision was a breach of the German Distance Learning Protection Act (FernUSG). The provider lacked the license required under Section 12 (1) FernUSG. Consequently, the customer was able to reclaim the remuneration of €23,800 already paid. This ruling highlights the increasing legal scrutiny of online coaching programs.

This decision is part of a series of recent judgments from various higher regional courts concerning the FernUSG. These cases reveal differing interpretations of the Act's applicability, especially regarding distance learning, coaching, and synchronous online formats.

The following court decisions illustrate the lack of a uniform legal line:

1. OLG Celle, judgment of 01.03.2023 – 3 U 85/22 (for applicability of FernUSG)
2. OLG Hamburg, judgment of 20.02.2024 – 10 U 44/23 (against applicability of FernUSG)
3. OLG Cologne, judgment of 06.12.2023 – 2 U 24/23 (against applicability of FernUSG)
4. OLG Munich, judgment of 18.01.2023 – 29 U 6497/22 (against applicability of FernUSG)
5. LG Hamburg, judgment of 19.07.2023 – 304 O 277/22 (for applicability of FernUSG)
6. LG Munich I, judgment of 18.07.2023 – 37 O 15493/22 (against applicability of FernUSG)
7. LG Ravensburg, judgment of 11.07.2023 – 5 O 25/23 (against applicability of FernUSG)
8. Regional court Frankfurt a.M., judgment of 03.05.2023 – 2-06 O 256/22 (against applicability of FernUSG)
9. LG Stuttgart, judgment of 19.12.2023 – 3 O 108/23 (for applicability of FernUSG)
10. Regional court Heilbronn, judgment of 19.12.2023 – 3 O 108/23 (against applicability of FernUSG)

Evidently, no uniform legal interpretation of the FernUSG's constituent elements has emerged. Courts have sometimes reached contradictory conclusions. Therefore, clarification from the Federal Supreme Court (BGH) is urgently needed to provide legal certainty for both providers and participants.

Physical Separation in Online Coaching

The Higher Regional Court of Stuttgart clarified that online teaching constitutes physical separation within the meaning of Section 1 (1) FernUSG. This holds true even if synchronous communication between teachers and learners is possible. The critical factor is that the teaching does not occur in person.

The legislator intended all forms of teaching not conducted in person to be subject to the FernUSG. Thus, a restrictive interpretation excluding video conferencing is not appropriate. The court emphasized a particular need to protect participants from dubious providers. It rejected the argument that video conferencing offers a comparable level of interaction to face-to-face events.

This approach aligns with the Higher Regional Court of Celle (judgment of 01.03.2023 – 3 U 85/22). In contrast, the Higher Regional Court of Hamburg (judgment of 20.02.2024 – 10 U 44/23) and the Higher Regional Court of Cologne (judgment of 06.12.2023 – 2 U 24/23) adopted a more restrictive interpretation. Further insights into these differing opinions can be found in our article on the impact of OLG Celle and LG Hannover rulings on online coaching services.

Low Requirements for Learning Success Control

The Higher Regional Court of Stuttgart also considered the monitoring of learning success, as defined in Section 1 (1) No. 2 FernUSG, to be present. It deemed it sufficient if participants could ask questions during meetings to check their understanding. No further extensive learning control was deemed necessary.

The court thus concurred with the broad interpretation of this criterion by the BGH (judgment of 15.10.2009 – III ZR 310/08). However, higher regional courts still lack unanimity on this point. For instance, the Higher Regional Court of Hamburg (judgment of 20.02.2024 – 10 U 44/23) and the Higher Regional Court of Cologne (judgment of 06.12.2023 – 2 U 24/23) require a review of the learning material's content by the teacher, beyond merely offering opportunities for questions. The Higher Regional Court of Celle (judgment of 01.03.2023 – 3 U 85/22) explicitly left this question open. Given the BGH's broad understanding, the approach of the Higher Regional Court of Stuttgart is likely preferable.

Legal Uncertainty for the Coaching Industry

This ruling is a significant development for the booming coaching industry. Many providers are unlikely to possess the required license under the FernUSG. Their contracts could therefore be null and void. Customers would then have a strong case for reclaiming fees already paid.

This situation also affects expensive coaching programs, which often target entrepreneurs and the self-employed. Such programs frequently involve five-figure sums. Providers also cannot solely rely on their contracts to withstand a general terms and conditions review. According to the BGH's case law (judgment of 15.10.2009 – III ZR 310/08), the FernUSG's scope of application is triggered if the overall contractual design meets its requirements. Individual, deviating general terms and conditions (GTC) clauses cannot alter this.

However, the legal situation remains far from clear. Other higher regional courts, such as Hamburg and Munich, view the applicability of the FernUSG to coaching contracts with much greater skepticism. They interpret the requirements more narrowly. For example, the OLG Munich (judgment of 18.01.2023 – 29 U 6497/22) denied the characteristic of predominant physical distance in an online coaching program. It also found the requirement to monitor learning success unfulfilled, stating that the mere possibility of asking questions was insufficient. Instead, the teacher must review the content of the learning material.

Against this backdrop, courts reach different conclusions even in comparable situations. This clearly demonstrates the considerable legal uncertainty that exists within the industry. Providers should also be careful with AI-generated contracts which might not cover these nuances.

High Court Clarification Urgently Needed

To establish legal certainty, the Federal Supreme Court must clarify the central issues of the FernUSG as soon as possible. This primarily concerns the following points:

• When is physical separation given? Are online formats sufficient, or is actual physical distance necessary? What is the significance of synchronous communication options like video conferencing?
• What requirements apply to the assessment of learning success? Is it sufficient to simply ask questions, or must the content of the learning material be checked by the teacher? How should this be assessed in coaching programs that focus less on pure knowledge transfer and more on guidance and support?
• Does the FernUSG also apply to contracts with entrepreneurs, or only to consumers? To date, lower instance courts have not taken a uniform stance on this either. While some advocate its application only to consumers, others consider the FernUSG to also apply to business participants.

Given the significant practical implications and inconsistent case law, clarification is urgently needed. The legislator is also called upon to adapt the FernUSG to the digital age. The law dates back to 1976 and has remained essentially unchanged. It does not sufficiently account for today's technical possibilities and teaching methods. Therefore, a reform is overdue to find an appropriate balance between participant protection and entrepreneurial freedom. This is particularly relevant for companies drafting modern contracts.

Hopefully, the BGH will soon seize the opportunity to provide more clarity. The coaching industry eagerly awaits further guidance. Until then, providers and participants can only closely monitor the further development of case law.

Fazit

Analyzing the listed judgments, the view that the FernUSG applies to coaching contracts is roughly balanced with the opposing view. Among the 10 decisions cited, 5 favor applicability, and 5 oppose it. It remains to be seen how the BGH will position itself on this complex issue. Until a definitive ruling, considerable legal uncertainty will unfortunately persist within the sector.