In a recent ruling, the Hamburg Regional Court made a decision that is causing a stir in the legal landscape. The court agreed with the legal opinion of the OLG Celle and declared a “coaching” contract null and void, as the plaintiff did not have the required authorization under the Distance Learning Protection Act (FernUSG). This ruling contrasts with decisions by the Kammergericht in Berlin and the OLG Frankfurt am Main, which explicitly do not follow this legal opinion. In a blog post from yesterday, I already discussed the diverging case law of the higher regional courts on the FernUSG in B2B contracts. Today’s article examines the decision of the Hamburg Regional Court and weighs it against the arguments of the Kammergericht in Berlin and the OLG Frankfurt am Main.
The decision of the Hamburg Regional Court
The Regional Court of Hamburg concluded that the “coaching” contract between the parties pursuant to § 7 para. 1 in connection with § 12 para. 1 sentence 1 of the Distance Learning Protection Act (FernUSG) is void. In its reasoning, the court cited several important points. First, it found that the plaintiff’s offer qualified as a distance learning contract. This is relevant because the plaintiff does not have the required license pursuant to Section 7 para. 1 FernUSG, which results in the nullity of the contract.
Another key issue in the decision was the applicability of the FernUSG itself. The court emphasized that the law applies not only to consumers, but also to entrepreneurs. This is an important clarification, as there are different opinions in case law on the applicability of the FernUSG in B2B relationships. In this case, the Regional Court of Hamburg followed the legal opinion of the Higher Regional Court of Celle, which also holds the view that the Distance Selling Act applies irrespective of whether the contracting parties are consumers or entrepreneurs.
This decision by the Hamburg Regional Court is remarkable in that it attempts to draw a clear line in the previously inconsistent case law and extends the applicability of the FernUSG to a wide range of contracts.
Arguments of the Court of Appeal in Berlin and the Higher Regional Court in Frankfurt am Main
The Kammergericht in Berlin and the OLG Frankfurt am Main are critical of the applicability of the Distance Learning Protection Act (FernUSG) in B2B contracts. The Kammergericht in Berlin argues that the law “can apply precisely only to consumers due to the purpose pursued by the legislator.” It clarifies that an entrepreneur cannot invoke the provider’s lack of authorization, which would preclude the contract’s nullity. The OLG Frankfurt am Main emphasizes that “the specific circumstances of the individual case must be taken into account.”
Both courts also make reference to the historical development of the law. The Kammergericht in Berlin points out that the term “consumer” in 1975 is not the same as the term consumer 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 differentiated views of the courts show the complexity of the legal issue and the need for clarification by the Federal Supreme Court. The divergent interpretations of the FernUSG by the courts underscore the urgency of a supreme court decision to create legal certainty in this area. It remains to be seen how the Federal Court of Justice will ultimately resolve this complex legal issue.
The divergent decisions of the courts show that it is time for the Federal Court of Justice to provide clarity in this matter. Until then, the legal situation remains unclear, and companies should be cautious about entering into distance learning contracts without having the necessary authorization. This uncertainty not only poses legal risks, but can also undermine confidence in the jurisdiction and integrity of the distance education marketplace. In addition, continued disagreement among the courts could result in companies increasingly turning to alternative contracting models that may offer fewer protections for the contracting parties. The current situation thus represents a challenge not only for the parties involved, but also for the entire industry. It is therefore in the interest of all parties involved that the Federal Court of Justice reaches a clear and binding decision soon.