Following the comprehensive amendment to the right of withdrawal in June 2010, the new law passed by the Bundestag on 27.07.2011 has now come into force on 04.08.2011. "Act to amend the provisions on compensation for lost value in distance selling contracts and related contracts" has come into force, which once again means that retailers on eBay, Amazon and other platforms as well as conventional online stores need to adapt. Due to the transitional period until November 4, 2011, there is no acute need for action. However, from 05.11.2011, the old withdrawal policy can no longer be used without risking a warning, so it is important to consider making the change as soon as possible.

The amendment to the law mainly affects regulations on compensation for lost value. The reason for the change in the law was the decision of the European Court of Justice on September 3, 2009, according to which the German regulations on compensation for lost value were declared to be partially contrary to European law, which made it necessary to adapt the corresponding regulations. The core of the decision was that a consumer who exercises his right to cancel a distance selling contract may not be obliged by the trader to generally pay compensation for lost value. According to the ECJ, such an obligation is not compatible with the Distance Selling Directive.

The new Section 312e of the German Civil Code (BGB) now contains the amended provisions on compensation for lost value in distance selling contracts. According to this, the consumer only has to pay compensation for use,

  • insofar as he has used the goods in a way that goes beyond the examination of the properties and functionality, and
  • if he has previously been advised of this legal consequence and informed of his right of revocation or return or has otherwise become aware of both.

The claim for compensation due to deterioration of the item in accordance with Section 357 (3) BGB remains in principle, but in a modified form. From now on, compensation can only be demanded,

  • insofar as the deterioration is due to handling of the item that goes beyond checking the properties and functionality, and
  • the consumer was informed of this legal consequence in text form at the latest when the contract was concluded.

The obligations of the contractor in the electronic business transactions have been incorporated unchanged into the new § 312g BGB (formerly § 312e BGB).

The changes mean that adjustments are required in two areas:

  • On the one hand, the reference chain in the withdrawal policy is no longer correct due to the change in the regulations in the BGB. The reference "§ 312e BGB" must be replaced by "§ 312g BGB".
  • Due to the change, the consequences of withdrawal now regularly contain the following note (distance selling of goods): "You only have to pay compensation for the deterioration of the item and for any use made of it if the use or deterioration is due to handling of the item that goes beyond testing its properties and functionality. 'Testing the properties and functionality' means testing and trying out the respective goods, as is possible and customary in a store, for example."

The overall consequence of this is that the model withdrawal and return instructions in the version dated 11.06.2010 have been replaced by the current ones and the withdrawal instructions used since then must be reworded accordingly. In principle, there is initially no risk of a warning if the samples in the old version are used correctly, as a transitional period runs until November 4, 2011. Nevertheless, it is advisable to use the new templates as soon as possible, in particular in the context of online stores recommended, as after the expiry of the privilege period Warnings threaten.