Bundestag votes for the right to updates and “fair consumer contracts”

For goods with digital elements such as cell phones or laptops that a customer purchases from a retailer, an update obligation will apply in the future, for example with updates or version changes (upgrades). This means that salespeople or suppliers must guarantee the functionality and IT security of the devices even after they have been handed over. The Bundestag passed a corresponding draft law on Friday night with the votes of the government factions of the CDU / CSU as well as the AfD and FDP. The Greens were against it, the Left abstained.

With the decision Parliament wants to cast the EU Sale of Goods Directive from 2019 into national law. At the same time, it voted for a second draft law, which concerns the implementation of the directive on digital content and services. Consumers thus receive extensive warranty claims, for example for repairs, returns and, in turn, updates when they pay traditionally or – in return, for example for access to an online service – submit their personal data.

The guideline for the sale of goods applies to online and traditional retail. It includes the purchase of intelligent household appliances, smart toys, computers, smartphones, tablets, networked TVs, smart watches, vacuum robots, fitness trackers and game consoles. The provisions not only extend to the actual product, but also to apps linked to it from the start.

If, for example, a smart TV is advertised as containing a specific video application, this is to be seen as part of the sales contract. The claims also apply if the promised digital elements first have to be downloaded on another device.

The right to receive necessary updates applies within a period of time that “can be reasonably expected by the consumer”. The Bundestag did not include an exact period of time. The deadline should depend on the type and purpose of the goods and the digital functions. The parties can regulate details in the purchase contract, for example on the pure purchase of security updates or upgrades. In its cost calculation, the Federal Ministry of Justice assumed that updates “must be made available for an average of five years”.

Should defects occur within one year of the delivery date, it will be assumed in future that they already existed. The consumer no longer has to prove this. In future, the manufacturer will have to prove that the goods issued were in order. The corresponding reversal of the burden of proof has so far only been valid for six months in this country. Based on this requirement alone, the retail sector expects additional costs of around 130 million euros annually.

The directive on digital content and services, which the Bundestag has also implemented into national law, is more broadly based. It will apply from the beginning of 2022 both to the purchase of goods such as CDs, DVDs or other data carriers via the Internet or in stores and to downloading apps, music, videos, e-books and games. Services such as social networks, online applications and cloud storage services are included.

Contracts for the provision of software for which the consumer does not pay a price and which the entrepreneur offers under a free and open source license (open source) are excluded. The condition is that the personal data provided by the user is processed by the provider “exclusively to improve the security, compatibility or interoperability of the software offered by the entrepreneur”.

If the digital product or service is defective, the consumer can, under certain conditions, demand “supplementary performance” of the contract, terminate it or reduce the price and demand compensation or compensation for wasted expenses. These warranty claims should “not expire before the expiry of twelve months after the end of the provision period”, while the federal government had provided a period of two years. A manufacturer may only make serious changes to a digital product if there is a valid reason and the consumer does not incur any additional costs. Special rules apply to renting digital products.

Emmanouil Kampitakis from the Chaos Computer Club (CCC) welcomed at a hearing that consumer rights in digital services should become an integral part of the civil code. However, he missed rules for avoiding technically perfect electronic waste, for operating devices regardless of the manufacturer, for specifying a guaranteed update period and for the right to repair.

The Bundestag also passed one with the votes of the CDU / CSU, SPD and AfD Bill for “fair consumer contracts”. The FDP and the Greens were against it, the left abstained again. The MPs want to better protect consumers against rip-offs with sabotaged contracts for electricity and gas as well as excessively long terms. The latter is about services such as telephone and internet, streaming, fitness studios or newspaper and music subscriptions.

Annoying and expensive automatic contract extensions should be a thing of the past with the initiative. In the future, consumers will be able to cancel each month more easily and without time pressure and switch to better offers when the initial term has expired. The government had also provided that service providers would have to make an offer for a year with the same service at a slightly more expensive price in parallel to a two-year contract. The coalition has deleted this passage because the CDU and CSU have crossed the line.

In the future, consumers will be able to officially cede demands from business conditions, for example for flight delays, to third parties such as “Legal Techs” and thus get their money faster if necessary. The representatives also introduce a mandatory cancellation button for online contracts. The corresponding confirmation button should be labeled with the words “cancel now” or with a clear formulation and one click on it should be enough to cancel an order.

The Bundestag has also passed a draft to reform the e-government and open data laws. It is about facilitate the use of public sector data in line with EU requirements as well as to raise their economic and civil society potential. The aim is to provide administrative data openly by default (“open-by-default”). However, there is no entitlement to the disclosure of information.

The coalition has made it clear here that data that fall under the law should, if possible, be created openly according to the principle of “conceptual and standard”. In addition, authorities with fewer than 50 employees and those in the indirect federal administration should also appoint an open data coordinator. Exceptions, for example for main customs offices and secret services, remain. Special transitional regulations apply to small offices. Public and private companies providing services of general interest are also recorded. These are companies from the water, transport and energy sectors that are subject to the regulations on the award of public contracts and concessions or operate public passenger transport services.


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