The Nintendo eShop is in hot water with European law

Nintendo could be in hot water if the Norwegian Consumer Council acts upon its recent findings around the Nintendo eShop.

The council claims Nintendo’s eShop doesn’t “comply with European law” due to its policy on pre-order cancellation processes. The NCC found that while EA’s Origin and Valve’s Steam platforms had “adequate systems in place for refunding purchased video games,” Nintendo “violates consumer rights by not offering any way to cancel a pre-ordered game.”

In a letter to Nintendo, the NCC has asked the Japanese publisher to “explain the legal reasoning” behind its eShop pre-order policy.

The key issue the NCC is trying to bring up is that if a digital product has been supplied to an individual who purchased it, they don’t have the right to ask for a refund on it. If, however, the product hasn’t been delivered – such as in the case of a pre-order – someone is well within their rights to change their mind.

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“The consumer does not have the right of withdrawal if the supply of the digital content has begun,” states the NCC letter. “The exemption [of European law] only applies to digital content where the performance has begun. 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.”

NCC’s director of digital policy, Finn Myrstad believes that Nintendo needs to change its practices, saying that “they should comply with the law and give consumers a clear way to execute their rights if they wish to cancel their order.”

“Regardless of the system the platform has for pre-orders and refunds, the right of withdrawal should apply before the release date.”

We approached Nintendo for comment on the matter and received an official response stating “The operation of Nintendo eShop in Europe is fully compliant with European laws relating to the statutory rights of consumers.”

The NCC disagrees, highlighting Article 16 (m) of the Consumer Rights Directive, where the European Parliament states that “the supply of digital content which is not supplied on a tangible medium if the performance has begun with the consumer’s prior express consent and his acknowledgment that he hereby loses his right of withdrawal.”

Basically, this means, if you’re buying a digital product and you haven’t been given access to it yet (such as a pre-order) you have a right to change your mind on owning it. If it’s become available to you, you no longer have that right.

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In general, it is surprising to see that the eShop’s only stance on cancellations around digital purchases is that “all sales are final”. It’s also surprising that it’s taken so long for some governing body to actually notice that this has been Nintendo’s policy towards digital downloads, given it’s been going against European law since 2011. Perhaps the phenomenal success of the Nintendo Switch has turned questioning eyes over to its digital sales platform.

Currently, you can obtain refunds for cancelling pre-orders of games on the PlayStation Store and Xbox Live Marketplace, but neither service makes it easy to do so.

For instance, the PlayStation store allows you to cancel a pre-order at any time, and issues a refund on the pre-order funds taken. After the game has been released, you can still request a refund as long as you’ve not downloaded the game and no more than 14 days have passed since its release. However, if you want to cancel a pre-order, you need to fill out a contact form on the PlayStation website to do so – you can’t just click a button and cancel your pre-order like you can with a physical game on Amazon, for instance.

Interestingly, Google offers up an excellent try-before-you-buy system as part of the Google Play Store. If you download a paid-for app, you can get your money back within 15-minutes after purchase if it’s not up to your expectations – which is quite a nice way to go about offering refunds.

If the NCC’s findings and subsequent appeal towards Nintendo has any impact, European Nintendo players could find some welcome changes coming to the eShop soon – and hopefully, they’ll bring back that cracking Wii Shop bossa nova beat.