In its judgment of 5 February 2026 (Ref.: III ZR 137/25), the Federal Court of Justice (BGH) has further clarified its case law on the Distance Learning Protection Act (FernUSG). The focus is on determining when online coaching programmes should be classified as distance learning under Section 1 of the FernUSG, which requires state authorisation. This decision is accompanied by a further judgment of the BGH of 5 February 2026 (Ref.: III ZR 74/25): The Senate confirmed the constitutionality of the authorisation requirement and the consequences of invalidity, and clarified that the Act also applies to commercial transactions.
What happened?
The defendant offered a fee-based e-commerce coaching programme via an online platform. In December 2022, the claimant entered into a contract to participate in the programme at a price of €8,092.
The programme included, amongst other things:
- access to a learning platform with instructional videos,
- participation in live video conferences (‘live calls’),
- video calls with coaches,
- access to a messenger group.
No authorisation had been granted under Section 12 of the Distance Learning Protection Act (FernUSG).
The claimant sought repayment of the fees and a declaration that the contract was void under Section 7 of FernUSG.
Alternatively, they relied on the grounds of unfairness (Section 138 of the German Civil Code (BGB)).
Decision of the Federal Court of Justice
No unfairness due to excessive coaching fees
Firstly, the Federal Court of Justice ruled that the contract was not void on the grounds of usury or usury-like circumstances under Section 138 of the BGB.
A market comparison is decisive for assessing a striking imbalance between performance and consideration. For this purpose, the market price of comparable services is decisive, not the subjectively assumed value of the service. The claimant had not demonstrated such a striking imbalance.
Teleological reduction of the characteristic of ‘geographical separation’
The Senate clarifies that not every transfer of knowledge via the internet automatically constitutes distance learning.
The characteristic of spatial separation must be reduced teleologically: spatial separation exists only if the transfer of knowledge
- does not take place by means of synchronous, bidirectional communication
- and learners have no immediate means of contacting the teacher.
Synchronous online teaching with direct interaction, on the other hand, may correspond to traditional face-to-face teaching.
The Federal Court of Justice justifies this on the grounds that the Distance Learning Protection Act is intended to cover forms of learning in which participants acquire the subject matter through self-study using teaching materials.
The criterion is the content of the contract
While the Court of Appeal focused on the practical implementation of the coaching, the BGH ruled that the decisive factor is the services specified in the contract, rather than how frequently the participant makes use of them.
Monitoring of learning progress already constitutes monitoring
According to the BGH, monitoring of learning success is deemed to exist even where participants have a contractual right to ask questions and can thereby test their understanding of the learning material. A contractual right to ask questions arises, for example, from live coaching sessions in which questions can be asked. Active monitoring by the teacher is not required.
Classification of the decision
The decision supplements the Federal Court of Justice’s previous case law on the FernUSG and clarifies its application to digital educational provision.
Particularly noteworthy is the BGH’s teleological interpretation of the criterion of ‘physical separation’ in Section 1(1)(1) of the Distance Learning Act (FernUSG). Although the wording of the provision might suggest that any online knowledge transfer constitutes distance learning, as it does not take place in the same location, the BGH clarifies that this does not correspond to the historical purpose of the FernUSG.
The FernUSG is designed for learning methods where participants study independently. Synchronous online teaching involving 'bidirectional real-time communication' differs fundamentally from this. If the learner interacts directly with the teacher, this is not considered to be distance learning.
With this interpretation, the Federal Court of Justice settles a dispute in higher court case law that had previously been answered inconsistently, in favour of a function-based assessment of the form of learning and confirms the previous practice of the State Central Office for Distance Learning (ZFU). The question of how to classify hybrid or blended courses, which contain both synchronous and asynchronous components, was not part of the ruling. In line with the ZFU’s practice, there is strong evidence to suggest that the application of the FernUSG should be rejected if the synchronous components predominate (> 50%).
The BGH’s current position on the FernUSG is also constitutionally underpinned by its judgment of 12 December 2025 (Ref.: III ZR 74/25). In that ruling, the Senate clarified that both the state authorisation requirement for distance learning courses (Section 12 of the FernUSG) and the consequence of nullity under Section 7(1) of the FernUSG are constitutional. In particular, there is no violation of the freedom of occupation under Article 12(1) of the Basic Law for the Federal Republic of Germany. The BGH justifies this on the grounds of public interest considerations such as quality assurance and protection against dubious offers; independent research on the internet or review portals cannot adequately replace a review by a state office. The Senate also rejects any violation of Article 3(1) of the Basic Law. The different treatment of the conclusion of a contract without an authorisation on the one hand and the subsequent withdrawal of an authorisation on the other is objectively justified. At the same time, the judgment confirms that the FernUSG is not limited to consumer contracts but also applies to the B2B sector.
Implications for providers of online coaching
Contract drafting is crucial
Whether the FernUSG applies depends on the scope of services set out in the contract. Providers should therefore carefully check which learning formats are contractually provided for. Furthermore, the BGH has expressly confirmed in III ZR 74/25 that the authorisation requirement and the consequence of nullity under the FernUSG also apply in business-to-business transactions. Providers cannot therefore rely on the assumption that high-priced coaching services in the B2B sector fall outside the scope of application from the outset.
Synchronous online teaching can avoid the FernUSG
Programmes with
- live sessions,
- opportunities for direct interaction and
- regular exchanges
are more likely to be classified as direct online teaching, which may mean that authorisation under the FernUSG is not required. It remains unclear, however, whether such a live session—which excludes the scope of the FernUSG—must allow for direct contact via verbal communication (i.e. using video/audio), or whether the option to contact via chat would suffice.
Asynchronous learning platforms remain risky
Coaching or other training programmes with
- extensive video modules,
- self-study phases
- and only supplementary support
will, by contrast, continue to be classified as distance learning. If authorisation under Section 12 of the FernUSG is lacking, the contract may be void (Section 7 FernUSG).
Conclusion
Once again, the Federal Court of Justice has clarified the scope of the Distance Learning Protection Act for online coaching and other educational programmes.
Synchronous online teaching may be equivalent to face-to-face teaching and thus fall outside the scope of the FernUSG. At the same time, the Senate confirms a broad interpretation of the monitoring of learning. It should be noted that the FernUSG also applies to entrepreneurs.
The specific design of the course concept and the adaptation of the contractual services to one’s own objectives are decisive.
Despite the BGH now having established a clear line, the abolition or amendment of the Act is under discussion. It remains to be seen whether the legislature will proceed with such a move.
