The Distance Learning Protection Act (FernUSG) dates back to 1977 – and was originally intended to regulate distance learning courses where communication was conducted in analogue form by post. Today, the law is still highly relevant for providers of digital training or coaching.
In two recent decisions (BGH of 12 June 2025 – III ZR 109/24 and BGH of 2 October 2025 – III ZR 173/24), the Federal Court of Justice confirmed a broad interpretation of the scope of application of the FernUSG. The FerUSG already comes into play if providers use keywords such as “graduate” or “course” in the course description. Furthermore, entrepreneur contracts are also covered in principle.
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Problem outline
Section 12 of the German Distance Learning Act (FernUSG) requires every distance learning course to be authorised in advance by the Central Agency for Distance Learning (ZFU). This authorisation is expensive and extremely time-consuming. If there is no authorisation, the distance learning contract is null and void and the course participants can demand a refund of the fees.
Prof. Niko Härting has questioned the meaningfulness of this encroachment on the freedom of profession and trade in Article 12 of the German Constitution and has come to the conclusion that the authorisation requirement is disproportionate and therefore unconstitutional. Any questions of equal treatment were central to the finding.
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Equal treatment issues raised
a.) with face-to-face courses
Online courses are becoming increasingly popular. A good example of this are specialist lawyer courses, which now mostly take place online. If such a course continues to be offered as a face-to-face course, no authorisation is required.
The reason for the authorisation requirement is that the contractual conditions and methodology of the material must be checked for seriousness in the case of distance learning. It is not clear why an online specialist lawyer course should be less reputable.
b.) with other providers in distance selling law
Other providers in distance selling, for example for software or other services and goods, are not subject to authorisation. Authorisation can be refused, for example, if the application for the distance learning course does not provide a sufficient overview of the contractual conditions (Section 12 (2) No. 3 FernUSG) or the contractual conditions themselves do not meet the legal requirements (Section 12 (2) No. 4 FernUSG).
Such a prior check of legal obligations is alien to distance selling law. It is highly questionable why such stricter rules must apply to distance learning. It is also difficult to understand why there should be a higher risk of offences against public safety and order (Section 12 II 1 No. 2 FernUSG) for distance learning courses than for other distance selling offers.
c.) EU competitive disadvantage
The authorisation requirement under Section 12 FernUSG only applies to German providers – but not to providers from other EU countries. This can be concluded from the country of origin principle enshrined in Section 3 (2) DDG. Providers of online services are subject solely to the law of their home country, even if they offer their online courses in Germany.
This creates a competitive disadvantage for domestic providers: They have to go through the complex authorisation procedure, while EU competitors can operate freely.
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Conclusion:
The law was once intended to protect learners from dubious offers. Today, there are modern consumer protection rules and platform evaluations. The FernUSG is therefore a relic from the analogue era. Its authorisation requirement no longer fits into a world in which education can be digital, flexible and international.
You can read about the constitutional concerns in an essay by Prof Härting in NJOZ 2025, 1344 ff. “Why the admission requirement of Section 12 FernUSG is unconstitutional” or register for the webinar by Prof. Niko Härting on 20 November 2025 on the topic: “The unconstitutionality of Section 12 FernUSG”.
You can register directly via Zoom: Register for the webinar here