When will the BGH finally get involved in the matter of FernUSG and coaching contracts?

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 due to a breach of the German Distance Learning Protection Act (FernUSG). The provider did not have the license required under Section 12 (1) FernUSG. The customer was therefore able to reclaim the remuneration of €23,800 already paid.

The ruling is one of a series of recent decisions by various higher regional courts on this topic:

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

No uniform line has yet emerged with regard to the interpretation of the constituent elements of the FernUSG. In fact, the courts have come to contradictory conclusions in some cases. Clarification by the Federal Supreme Court is therefore urgently required in order to create legal certainty for providers and participants.

Physical separation also for online lessons

The Higher Regional Court of Stuttgart clarified that online teaching also constitutes physical separation within the meaning of Section 1 (1) FernUSG, even if synchronous communication between teachers and learners is possible. The decisive factor is that teaching does not take place in person. The legislator intended all forms of teaching that do not take place in person to be subject to the FernUSG. A restrictive interpretation of video conferencing is not appropriate.

Rather, there is a particular need to protect participants from dubious providers. The court thus rejected the argument that video conferencing offers a comparable level of interaction to face-to-face events. In this respect, it followed the line of 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) had taken a more restrictive interpretation.

Learning success control with low requirements

The Higher Regional Court of Stuttgart also considered the monitoring of learning success within the meaning of Section 1 (1) No. 2 FernUSG to be given. It was sufficient for this if the participants could ask questions in the meetings to check their understanding. Further learning control was not necessary.

The court thus agreed with the broad interpretation of the criterion by the BGH (judgment of 15.10.2009 – III ZR 310/08). However, there is no unanimity among the higher regional courts in this respect either. For example, 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 content of the learning material by the teacher beyond the mere possibility of asking questions. The Higher Regional Court of Celle (judgment of 01.03.2023 – 3 U 85/22) expressly left the question open. However, in view of the broad understanding of the BGH, the approach of the Higher Regional Court of Stuttgart is likely to be preferable.

Legal uncertainty for the coaching industry

The ruling is a bombshell for the booming coaching industry. Many providers are unlikely to have a license under the FernUSG. Their contracts could therefore be null and void. Customers would then have a good chance of reclaiming fees already paid.

This also applies to expensive coaching programs, which are often aimed at entrepreneurs and the self-employed. Five-figure sums are quickly involved here. Providers can also not rely on the fact that their contracts will stand up to a general terms and conditions review. According to the case law of the BGH (judgment of 15.10.2009 – III ZR 310/08), the scope of application of the FernUSG is opened up if the requirements are met according to the overall picture of the contract design. Individual deviating GTC clauses cannot change this.

However, the legal situation is anything but clear. Other higher regional courts such as Hamburg and Munich take a much more skeptical view of the applicability of the FernUSG to coaching contracts. 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 did not consider the requirement to monitor learning success to be fulfilled. The mere possibility of asking questions was not sufficient for this. Rather, the content of the learning material must be reviewed by the teacher.

Against this background, the courts come to different conclusions even in comparable situations. This shows the great legal uncertainty that exists here.

High court clarification urgently needed

In order to create 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 necessary? Are online formats sufficient or is physical distance necessary? What is the significance of synchronous communication options such as 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 is this to be assessed in coaching programs that are less about pure knowledge transfer and more about guidance and support?

– Does the FernUSG also apply to contracts with entrepreneurs or only to consumers? To date, the courts of lower instances have not taken a uniform line on this either. While some advocate its application only to consumers, others consider the FernUSG to also apply to business participants.

In view of the great practical significance and the inconsistent case law, there is an urgent need for clarification here. 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 since then. It does not take sufficient account of today’s technical possibilities and teaching methods. A reform is therefore overdue. This is the only way to find an appropriate balance between the protection of participants and entrepreneurial freedom.

Hopefully the BGH will soon take the opportunity to provide more clarity. The coaching industry will thank it. Until then, providers and participants can only follow the further development of case law closely.

Looking at the judgments listed, the view that the FernUSG is applicable to coaching contracts is currently roughly balanced by the opposing view. Of the 10 decisions cited, 5 are in favor and 5 against applicability. It remains to be seen how the BGH will position itself on this issue. Until then, there will unfortunately continue to be considerable legal uncertainty for the sector.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.