There has been noticeable uncertainty in the coaching industry to date, particularly with regard to the applicability of the Distance Learning Protection Act (FernUSG) to B2B contracts. Many entrepreneurs could not understand the argumentation of the OLG Hamm that the FernUSG is also applicable to such contracts. Now a fresh ruling by the Higher Regional Court (OLG) of Frankfurt am Main is finally bringing clarity to the debate. The court ruled that the FernUSG does not apply to contracts between two entrepreneurs, thus contradicting the previous legal opinion of the OLG Celle. This ruling now offers an important starting point for enforcing claims and reducing the existing uncertainty.
The case
In a ruling dated 15.9.2023 (case no. 2-21 O 323/21), the Regional Court of Frankfurt am Main made an important decision concerning the German Distance Learning Protection Act (FernUSG). The case centered on a coaching and consulting company that was sued by a customer for repayment of an agreed fee of EUR 10,000 from a coaching contract. The customer invoked the nullity of the contract in accordance with the German Distance Selling Act (FernUSG), citing a ruling by the Higher Regional Court of Celle from March 1, 2023 (case no. 3 U 85/22). In a much-discussed decision, the Higher Regional Court of Celle found that the FernUSG also applies to B2B contracts, which caused considerable uncertainty in the industry. The Regional Court of Frankfurt am Main has now contradicted this view, bringing a degree of legal certainty back to the market.” For further insights into the impact of the judgments of the Higher Regional Court of Celle and the Regional Court of Hanover on online coaching services, you can
read an article I wrotehere.
The decision
In its reasoning, the Regional Court of Frankfurt am Main dealt in detail with the non-applicability of the FernUSG in the present case. It emphasized that the law is primarily intended to protect consumers. The court referred to the clear wording of the explanatory memorandum to the FernUSG, according to which the law only applies to contracts between consumers and entrepreneurs. This clear positioning of the Frankfurt Regional Court is in clear contradiction to the decision of the Hamm Higher Regional Court. In a similar case, the OLG Hamm had considered the FernUSG to be applicable to B2B contracts, which had caused considerable confusion and uncertainty in the business world. The decision of the Frankfurt Regional Court could therefore be seen as an important step towards clarifying this legal gray area. Interestingly, the Berlin Appellate Court had already issued a similar advisory decision in June 2023, which also denied the applicability of the FernUSG to B2B contracts. This decision strengthens the position of the Frankfurt Regional Court and could be an indicator of an emerging trend in case law.
What does this mean in practice?
This decision could have far-reaching consequences in practice. In particular, it could result in entrepreneurs no longer being able to rely on the FernUSG as a legal basis for challenging a contract in similar cases. This could increase legal certainty in B2B contracts, but also lead to more stringent requirements for contract drafting. For coaching providers serving B2B clients, this is especially good news. They can now probably finally assert their claims without running the risk of the FernUSG acting as a stumbling block. Although the Federal Court of Justice (BGH) may at some point have a say in the matter, the trend in case law clearly indicates that the FernUSG should not apply in B2B contracts. This suggests that the OLG Celle was simply wrong in its contrary view. It could even be that the coaching company’s legal advisors made serious mistakes in the case before the Higher Regional Court of Celle, which led to the misleading judgment.
Conclusion
The decision of the OLG Frankfurt could represent a turning point in the applicability of the FernUSG to B2B contracts. It remains to be seen how case law will develop in this area. The judgment of the Frankfurt am Main Regional Court is not yet final, and it remains to be seen whether it will stand up in the next instance. However, it is important to emphasize that this decision does not release coaching providers from the obligation to draw up correct contracts and general terms and conditions (GTCs). There could still be starting points for challenges or recoveries, for example if the coaching sessions are massively overpriced or agreed services are not provided. However, the FernUSG seems to be increasingly out of play. In this context, legal advice will again become more worthwhile, as the uncertainty that previously existed due to divergent court decisions will hopefully decrease
