Contracts for digital content and services (hereinafter “digital products”) have become indispensable for a large section of society. 2022 will bring considerable innovations in the area of fair consumer protection, which are highly relevant for both entrepreneurs and consumers in everyday life. The application of existing laws to contracts with constantly changing digital products are often complex and can lead to unsatisfactory outcomes. This article provides an essential overview of the introduction of the new laws, the amendment of individual GTC regulations as well as the termination of consumer contracts in electronic legal transactions.
Trade in products and the use of services within Europe benefits from harmonised consumer rights in many areas. For consumers in particular, a uniform level of consumer protection within Europe is advantageous, as legal transactions can be carried out across the borders of one’s own country without increased risk. In the opinion of the European legislator, however, the existing regulations for the transfer and provision of digital products were insufficient, so that based on various EU directives (Reform of the Consumer Sales Directive 1999/44 by Directive 2019/771 for „goods with digital elements“, New Directive 2019/770 on contractual aspects of the provision of digital content and services), the new Sections 327 et seq. BGB were created in Germany.
The provisions of section 327 and sections 327a to 327u BGB apply if four conditions are met:
With the introduction of the new Sections 327 et seq. BGB, their relationship to the general as well as to the special provisions on contract law must also be taken into account. In particular, rules of priority and applicability in relation to other consumer protection provisions must be examined closely in each individual case. At EU level, it also remains essential to take into account the different general legal rules of the Member States, such as those on the conditions for the conclusion of a contract. The application of harmonised consumer protection rules may therefore continue to show differences in individual Member States.
The new regulations will come into force on 1 January 2022, whereby the date of conclusion of the contract is decisive for their application. In addition, the potential applicability to old contracts that provide digital products from 1 January 2022 should be noted. This may include, in particular, subscriptions to digital products. Exceptions may arise in individual cases under sections 327r, t and u BGB.
The Fair Consumer Contracts Act already came into force on 1 October 2021. From 1 March and 1 July 2022, respectively, further amendments will now apply.
With the Fair Consumer Contracts Act, the Federal Ministry of Justice (BMJ) intends to strengthen the rights of consumers. The new general terms and conditions regulations should prevent, for example, contracts that have been foisted on consumers or overly long contract extensions. In addition, the creation of the so-called cancellation button on the internet will expand the cancellation options for consumers. In future, declarations of termination are to be as easy to submit as those for concluding a contract. What this means for businesses is explained briefly below:
Cancellation button on the internet:
The newly introduced Section 312k BGB expands the termination options for contracts on the internet in which the company offers paid services within the framework of a continuing obligation. For contracts of this type, consumers must be provided with a cancellation button (so-called “cancellation button”).
The cancellation button must be clearly legible, permanently available and clearly labelled with a wording such as “Cancel contracts here”. If the consumer has not indicated the time of termination, the termination shall take effect at the earliest possible time in case of doubt.
The implementation of this innovation should not be underestimated, especially because of the sanction expressly provided for by the legislator. If companies do not comply with their obligations to implement the new § 312k BGB, consumers will be able to terminate the contractual relationship at any time and without observing a period of notice as of 1 July.
These obligations also apply to contracts that came into existence before 1 July. By way of comparison, the amendments in Section 308 BGB and Section 309 BGB apply exclusively to contracts concluded after their entry into force.
The innovations set out above require businesses to engage in a more in-depth discussion and to actively adapt their previous terms and conditions. Due to the increased action of consumer protection associations against well-known companies, these innovations should under no circumstances be neglected in the context of consumer contracts.
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