Does your company offer digital services or content to consumers? Then you must now find out about the new right of withdrawal and, if necessary, adjust your cancellation policy — otherwise severe fines may be due from May 28!
Companies account for up to four percent of their annual turnover or up to 50,000 euros in the event of violations. For companies with an annual turnover of more than 1.25 million euros, even higher amounts may be charged.
In this article, we will inform you about the change in the law. However, we are also happy to answer any further questions you may have.
Omnibus Directive: What happened so far
In January 2020, the EU's so-called Omnibus Directive came into force. The member states have thus committed themselves to implementing various consumer protection regulations step by step into their national law. However, the directive has nothing to do with the mode of transport of the same name: in this case, “omnibus” refers to the Latin word “all” — because (almost) all consumer protection directives are being revised.
The aim of the Omnibus Directive is to modernize consumer protection and thus create more transparency — particularly when it comes to online purchases, rankings, customer reviews or online marketplaces. In addition, sanctions and fines should be harmonised across the EU.
Digital content, digital services — what is what?
From May 28, online retailers will have to adjust their information on the right of withdrawal for digital services or content as part of the Omnibus Directive. Services include, for example, clouds, cloud-based games, web hosting or streaming services. In contrast, digital content is individual data that is provided and downloaded in digital form — such as video files, photos, audio files, computer programs, e-books or patterns.
The new laws can be found in the Civil Code (BGB) Section 356 paragraph 4 (digital services) and Section 356 paragraph 5 (digital content).
Goods for money, goods for data: It's the contract that counts
In future, contracts for digital content and services will distinguish between two types of contracts: those in which the buyer makes a monetary payment and those in which personal data is used instead of money.
In the latter case, the right of withdrawal expires if...
- ... the service was provided in full, or
- ... the seller has already begun to fulfill the contract for digital content.
If, on the other hand, the buyer has paid for his (digital) goods with money, the right of withdrawal expires if...
- ... the buyer has agreed that the seller will start providing the service before expiry of the withdrawal period, or
- ... in the case of a contract concluded outside business premises, consent to the provision of the service was provided on a durable data carrier before expiry of the withdrawal period, or
- ... the buyer confirms that he is aware that his right of withdrawal expires upon full fulfilment of the contract by the seller.
In addition, the following rules on the right of withdrawal apply to digital content: It expires when...
- ... the buyer agrees that the seller will begin to fulfill the contract before the cancellation period expires
- ... the buyer confirms that he knows that his right of withdrawal expires as soon as the contract is fulfilled, or
- ... the seller has provided the buyer with confirmation that the right of withdrawal has expired on a durable data carrier (e.g. e-mail, paper or computer hard drives).
Changes to the cancellation policy
Modernization of the right of withdrawal also includes the fact that a fax number no longer has to be specified in the cancellation policy. The provision of a telephone number is required for this. In future, the sample declarations must contain the name, address, e-mail address and telephone number of the retailer.
