Nintendo wins EU court case letting it continue its no-refunds eShop pre-order policy

The world of digital rights on video game purchases is still a bit murky. We’re still seemingly leagues away from being able to resell or even gift away the digital licences for the games we buy. Hell, up until relatively recently it was hard enough getting refunds for games. Steam was one of the first major platforms to offer refunds, through a straight forward and consumer-centric process. Microsoft’s refund process is now pretty similar to Steam’s. It’s a little tougher to get refunds on PlayStation consoles, but at the very least Sony will let you cancel a pre-order and get a refund. Good luck trying that with Nintendo.

For whatever reason, once you’ve pre-ordered a digital Nintendo game, that money is gone forever. No changing your mind, no takesies-backsies. It’s terrible consumer unfriendly – enough so that the German Consumer Protection Authority (VZBV) and Norwegian Consumer Council banded together to take Nintendo to court, believing it to be illegal under Norwegian and EU law.

According to Nintendo, they’re not breaking any laws because they’re “fulfilling their contract” to deliver the software and that under EU law, they don’t have to offer refunds once “the performance has begun with the consumer’s prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader.”

The Norwegian council though, says that “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 cancelling their pre-order.”

Nintendo was taken to court in Germany last year (because Nintendo Europe is based there) and the courts have curiously sided with Nintendo’s interpretation of the law.

To a layman such as myself, interpreting “performance has begun” to the moment of download rather than the ability to open and play a game is an odd one, but I suppose the law and plain English aren’t the same thing. The decision has been appealed, but it’ll apparently be quite some time before it goes back to court.

In the end, Nintendo gets to continue with what I feel is a terribly anti-consumer practice and one that’ll only hurt their bottom line when people just stop pre-ordering.

Last Updated: January 23, 2020