BGH: Cancellation button is also necessary for automatic contract termination

Contents

Since July 2022, providers have had to make a termination button available online for long-term debt relationships. However, there are repeated disputes about this legal obligation. The Federal Court of Justice (BGH) has now provided more clarity on one point: it ruled in a recently published judgment from 22 May (I ZR 161/24): A termination button in accordance with Section 312k of the German Civil Code (BGB) is also necessary if the consumer only has to pay a one-off fee and the contract ends automatically.

In this case, the German Federation of Consumer Organizations (vzbv) took legal action against the mail order company Otto.de. The retailer offers the “Otto Up Plus” loyalty program on its website for an annual fee of 9.90 euros. The duration of this package is twelve months and then expires automatically. The vzbv initially warned Otto.de because the provider did not provide a button for extraordinary termination of the offer. The Higher Regional Court (OLG) of Hamburg dismissed the claim as it believed that “Otto Up Plus” was not a continuing obligation within the meaning of Section 312k of the German Civil Code (BGB) and therefore there was no obligation to provide a termination button.

The BGH overturned the judgment of the lower court and upheld the plaintiff's appeal. The First Civil Senate ordered the defendant to no longer offer fee-based advantage programs without allowing consumers to terminate the contract without notice via a corresponding button. Otto.de must also pay 260 euros plus interest to the consumer protection organization.

How far does a continuing obligation extend?

With their decision, the judges in Karlsruhe interpreted the central concept of a continuing obligation broadly. Accordingly, the essential characteristic of such a business relationship is that the entrepreneur provides services on a permanent or recurring basis, and the overall scope of these services depends on the duration of the contract. In the present case, the defendant continuously provides points credits and free shipping during the term of the contract, which constitutes the main service typical of the contract. The benefits package therefore falls under the relevant standard.

The BGH did not agree with the OLG's argument that a one-off payment by the consumer rules out a “cost trap” and that there was therefore no need for protection. The legislator had not primarily thought that consumers would not be able to see the extent of their payment obligation. Rather, it was concerned that the termination of contracts concluded in a simple manner would be made more difficult in electronic business transactions and that their termination would be delayed.

Wake-up call for online providers

Even with a one-off payment at the start of the contract, the customer can fall into a “cost trap,” according to the Senate. The remuneration owed often depends on the duration of the contract term. In addition, a more difficult termination increases the amount that the consumer owes the entrepreneur. An exception to Section 312k BGB for contracts with a one-off payment would run counter to the protective purpose of the standard. The legislator's restriction to continuing obligations considers the fact that the legal consequences of termination are only sufficiently foreseeable in these cases.

IT lawyer Jens Ferner sees the ruling as a wake-up call for providers of digital service models or memberships: “Anyone who offers consumers a convenient way to conclude a contract must also provide an equivalent option for terminating the contract.” The focus of consumer protection in the digital space is on structurally facilitating termination.

Withdrawal button from June 2026

In the future, a revocation button will also be mandatory: from mid-2026, contracts concluded online should also be able to be revoked with just one click. This is provided for in a draft law published by the Federal Ministry of Justice and Consumer Protection on Wednesday. The ministry wants to implement amended EU regulations on consumer and insurance contracts. “As easy as it is to order online, it should be just as easy to withdraw,” emphasized Justice Minister Stefanie Hubig (SPD). “With the revocation button, we are strengthening protection against contracts that people don't actually want.”

According to the draft bill, which must first pass the Federal Cabinet, the obligation for such an online button will apply to goods, services, and financial services. However, according to the plan, contracts for the latter will be able to be revoked for a maximum of twelve months and 14 days after the conclusion of the contract. Prerequisite: The consumer has been informed about the right of withdrawal. In the case of life insurance policies, an exclusion period of 24 months and 30 days is to apply. Up to now, it has been possible to revoke such contracts – without a time limit despite having been informed. Furthermore, companies will no longer have to send the contractual conditions in paper form in the future.

(mma)