In context: Nintendo has been under fire over its refund policies for the last several months, and now it appears the company will be going to court over the matter. The German Consumer Protection Authority feels that the company’s “all sales including pre-purchases are final” policy violates the European Consumer Rights Directive (CRD).
Norwegian outlet PressFire notes that earlier this year, Norway’s Consumer Council examined seven digital storefronts and only found two that it felt abided by all European regulations regarding refunds on pre-orders, otherwise known as the right of withdrawal.
Steam and EA’s Origin were cleared as both allow pre-order cancellations. In the case of Steam, players can get a refund even if they have downloaded the game and played it for a short while.
Sony does allow you to get a refund on pre-orders even after the release date, but only if you have not downloaded it. Microsoft has a similar policy, but it only applies prior to the launch of the game.
The NCC singled out Nintendo because it has the worst refund policy of the lot. It basically states that if you make a pre-order, you waive your right to a refund. The company defends this condition arguing that it conforms to 2011/82 CLD Article 16 (PDF). This section lists all the exceptions to the right of withdrawal.
The very first exception listed reads, “Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises contracts as regards the following: … if the performance has begun with the consumer's prior express consent, and with the acknowledgment that he will lose his right of withdrawal once the contract has been fully performed by the trader.”
Nintendo believes this exception applies it since users consent during the purchasing process and "performance" is started on completion of the transaction via preloading.
The NCC counters the argument according to Eurogamer saying, "The company plainly states that all purchases are final. According to the right of withdrawal laid down in the Consumer Rights Directive, such terms are illegal. Until the game can be downloaded and launched, the seller cannot prohibit the consumer from canceling their pre-order."
The German CPA agrees with Norway and has picked up the case since Nintendo’s European headquarters is located in Germany. The hearing will start within the next month.