TL;DR – the most important points in brief
Scope of application of the FernUSG: The Distance Learning Protection Act (FernUSG) also applies in the B2B sector.
Staatliche Zentralstelle für Fernunterricht (German national agency for distance learning; “ZFU”) certification requirement: Even online courses with little feedback or certificate grant can trigger a certification requirement.
Risks in the event of a violation: Contracts are void (Section 7 FernUSG), repayments to the customers may be required, and fines and warnings may be imposed.
On 12 June 2025, the Federal Court of Justice (Ref. III ZR 109/24) issued a ruling that significantly expands the scope of the German Distance Learning Protection Act (FernUSG). Essentially, the Senate clarified that the protective mechanisms of the FernUSG apply not only to consumers but also to entrepreneurs. In practice, this means that a wide range of digital education offerings – from online courses to hybrid models to coaching programmes – may be subject to licensing requirements in the future.
What happened?
In the case at hand, a provider had marketed a coaching programme consisting of video content, recorded live sessions and accompanying tasks. Participants were promised a certificate. The Federal Court of Justice (BGH) considered this to be a paid educational offering that took place predominantly in a separate location and provided for monitoring of learning success. This meant that the requirements of Section 1 FernUSG were met.
The key points of the ruling
The Federal Court of Justice highlighted three key points in its decision
- B2B applicability: The FernUSG applies not only in relation to consumers, but also between businesses. Providers cannot therefore claim that their courses are aimed exclusively at self-employed persons or companies.
- Spatial separation: Recorded live sessions also count as asynchronous content and contribute to the "predominantly" distance learning nature of the course.
- Learning success monitoring: The combination of tasks, feedback or certificates is sufficient to affirm that learning success is being monitored.
What are the practical implications of the ruling?
The ruling has far-reaching consequences for various market participants:
Providers of online and hybrid courses must increasingly expect to be subject to certification requirements. Even courses that contain some digital content could be subject to licensing. Formats such as video tutorials, information products or coaching sessions may fall within the scope of application as soon as feedback or certification functions are provided.
Companies that use external training programmes should also review their processes. The clarification regarding B2B applicability means that training courses booked with external providers may also be subject to ZFU certification requirements. There are good reasons to believe that the FernUSG does not apply to purely internal in-house training courses without a contractual relationship between participants and external providers.
The risks of not having a ZFU-certification are considerable: contracts for non-certified offers are void under Section 7 FernUSG. Participants can reclaim fees already paid. In addition, there are fines of up to €10,000 (Section 8 FernUSG) and the risk of warnings from competitors and consumer protection associations.
Recommendations
In light of the expanded scope of the FernUSG, providers and companies should systematically review their educational offerings. Key steps include:
- Conduct an inventory
First, all existing educational offerings and external training courses should be recorded. Then, it should be checked whether the respective offering provides learning success monitoring, as this can significantly impact the FernUSG's applicability.
- Clarify certification requirements
Providers should seek legal advice at an early stage and, if necessary, contact the ZFU to obtain legal certainty. On this basis, affected courses can be registered for certification in good time.
- Review contract design
If the FernUSG applies, special contractual provisions must be observed. Particular attention should be paid to adapting cancellation rights and information obligations to comply with the legal requirements. At the same time, the contract templates used should also be reviewed and updated if necessary.
- Establish compliance processes
It is also important to implement processes that allow new offers to be regularly checked for compliance with the FernUSG. In addition, internal responsibilities should be clearly defined.
The aim must be to avoid refund claims from course participants and possible fines. Likewise, potential competition law risks arising from warnings issued by competitors or consumer protection associations should be minimised at an early stage.
Summary and outlook
The ruling by the Federal Court of Justice marks a turning point for digital education providers. The scope of the FernUSG is broader than many providers had previously assumed. For tech and digital companies, this means that even innovative business models such as online coaching or hybrid learning platforms are often subject to certification requirements. It is therefore essential to address the requirements of the FernUSG at an early stage in order to avoid legal risks and economic damage.
