Nintendo's eShop refund policy found to violate European consumer rights

Norwegian Consumer Council asks Nintendo to bring its policy in line with European law

The Norwegian Consumer Council has asked Nintendo to change its policy around refunds on the eShop. As it currently stands, the Council said, the online store is in violation of European consumer rights.

According to a report from Forbrukerradet, the Norwegian Consumer Council (NCC) conducted research into seven digital video game platforms, and found that only Origin and Steam had "adequate systems in place for refunding purchased video games.", Uplay, Playstation Store and Xbox Store had systems in place, but all lacked user-friendliness or required direct contact with customer support.

Only one platform provided no options at all: the Nintendo eShop, which the NCC believes is in violation of European consumer rights. Nintendo's terms unequivocally state that "all sales are final", and even advises customers to check that they can meet all "download requirements" before they complete a purchase or a pre-order.

In a letter to Nintendo of Europe, the NCC stated that these terms violate the Consumer Rights Directive that allows those in the EU and European Economic Area to withdraw from a purchase if distribution hasn't yet started. The only exemption to this applies when, "supply of the digital content has begun with the consumer's prior express consent and his acknowledgement that his consent entails that he thereby loses his right of withdrawal."

"This exemption only applies to digital content where the performance has begun," the NCC continued. "The performance has not begun for games that have not yet been released. Even with prior consent, Nintendo cannot prohibit the consumer from cancelling or withdrawing from a digital content contract before the performance has begun."

"When pre-ordering a video game, you have the right to cancel your order at any time before the release date," Finn Myrstad, director of digital policy at the NCC, told Forbrukerradet. "This should be a quick and easy process, for example by the click of a button.

Myrstad added: "Until the game can be downloaded and launched, the seller cannot prohibit the consumer from cancelling their pre-order."

The NCC closed its letter by asking Nintendo three questions: "Can consumers freely cancel or withdraw from a pre-order or pre-purchase before the release of the game? If yes, how does the consumer proceed to forward such a claim? If not, please explain the legal reasoning."

The NCC expects that Nintendo will, "make the necessary changes in order to bring their platform in line with European law."

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