The exponential availability of such coaching services was fueled not only by the high demand, but also by the flexible accessibility and reduced organizational effort that can be achieved by moving to video conferencing and abandoning face-to-face events. In many contexts, purely digital courses have already completely replaced traditional face-to-face events, even outside the coaching market.
However, the question of how exactly online lectures are conceptualized can be far more than a mere question of practicability, as was recently demonstrated in the decision of the Federal Court of Justice (BGH) on June 12, 2025 (BGH, Urt. v. 12.6.2025 – III ZR 109/24):
I. Background of the decision
In April 2021, the plaintiff entered into a coaching contract with the defendant for a “9-month business mentoring program on financial fitness” at a gross price of €47,600.
The defendant describes itself as an “academy” whose self-declared goal it is to convey “knowledge of efficient growth strategies” and a “strong mindset” while “significantly shortening the knowledge acquisition process.” To this end, the defendant offers a combination of, among other things, biweekly online meetings, homework, instructional videos, and support from “experts.” The aim is to impart knowledge in the areas of marketing, sales, and business organization.
The plaintiff first participated in the defendant’s program for seven weeks and then declared the termination of the contract without notice and contested the validity of the contract on the grounds of fraudulent misrepresentation.
II. Decision of the Federal Court of Justice
The Federal Court of Justice ruled in favor of the plaintiff and ordered the defendant “Academy” to repay the remuneration paid.
1. Violation of the licensing requirement under Sec. 7 I FernUSG
According to the Federal Court of Justice, the coaching contract in the present case violated Sec.7 I FernUSG, because the defendant did not have the required license for distance learning courses in accordance with Sec. 12 I FernUSG. According to this provision, distance learning courses require licensing by the “State Central Office for Distance Learning” if their content and objectives are not exclusively for leisure or entertainment purposes. According to the law, distance learning exists when knowledge and skills are imparted on a contractual basis in return for payment, with teachers and learners being exclusively or predominantly separated in terms of location (No. 1) and the teachers or their representatives also monitor the learning success (No. 2).
a) Do coaching/mentoring programs impart knowledge?
Against this background, the Federal Court of Justice first noted that the controversial question of whether coaching/mentoring services are generally designed to impart knowledge and skills within the meaning of Sec. 1 I FernUSG was not decisive in this case, as the predefined learning objectives contained in the defendant’s program description sufficiently prioritized the transfer of knowledge. The court did not accept the defendant’s objection that he did not impart knowledge, but merely coached the participants in their so-called “mindsets” by “identifying and dissolving limiting beliefs/convictions” and “defining life goals and identifying suitable implementation steps,” in light of the clear program description provided in this regard.
b) Physical separation
The question whether all online teaching automatically meets the physical separation requirement set out in Sec. 1 I Nr. 1 FernUSG, or whether a distinction should be made between synchronous and asynchronous formats, was also left open by the Federal Court of Justice. The previous instance had taken the view that the physical separation required by § 1 I Nr. 1 FernUSG was always given when conducting online lessons, since the wording of this provision does not provide for a distinction between synchronous and asynchronous teaching formats.
However, this would result in all online teaching formats being subject to the licensing requirement under the FernUSG. The prevailing opinion therefore argues against this, stating that the legislator did not foresee the possibility of synchronous online teaching formats in which (as in face-to-face courses) learners can ask teachers questions in real time. By pointing out that such synchronous online formats are functionally no less effective than face-to-face courses, some argue that the wording of Sec. 1 I Nr. 1 FernUSG must be interpreted restrictively, taking into account the meaning and purpose pursued by the legislature, in such a way that Sec. 1 I Nr. 1 FernUSG can only reasonably cover (predominantly) asynchronous online formats. The State Central Office for Distance Learning has also endorsed this view in its application practice. The Federal Court of Justice was able to leave this question open, however, because the defendant in this case offered predominantly asynchronous online teaching, which, according to all opinions represented, is undisputedly covered by the licensing requirement of the FernUSG.
c) Monitoring of the learning success, Sec. 1 I Nr. 2 FernUSG
The Federal Court of Justice also found that the learning success was also being monitored within the meaning of Sec. 1 I Nr. 2 FernUSG. This requirement is to be interpreted broadly and is therefore already deemed to be met if learners have the right and opportunity to ask questions about their own understanding of the material learned and can thus effectively initiate a monitoring of their learning process themselves.
2. Application of the FernUSG in B2B relationships
In previous rulings and literature, the view had been expressed that the FernUSG was only applicable in the B2C sector, i.e., only in relation to consumers within the meaning of Sec. 13 German Civil Code (“BGB”). Although neither the court of appeal nor the appeal statement explicitly addressed this issue, the Federal Court of Justice clarified that the personal scope of application of the FernUSG also includes businesses within the meaning of Sec. 14 BGB, since the law only defines the terms “organizer” and “participant” in Sec. 2 I FernUSG without distinguishing between consumers and businesses. The reason for this is that, with the FernUSG, the legislator is pursuing an object-related protection concept which is intended to ensure the suitability and quality of distance learning programs. The question of whether the distance learning contract is a B2B or a B2C relationship is therefore irrelevant.
3. Right to reimbursement in terms of Sec. 812 I 1 Alt. 1 BGB
Since, for all those reasons, the concluded coaching contract was subject to licensing as provided by Sec. 12 I FernUSG and because the defendant did not have such a license, the Federal Court of Justice deemed the concluded distance learning contract to be void under Sec. 7 I FernUSG. As a result of this voidness, the defendant’s remuneration had also not been bindingly agreed upon. The partial payment already made was therefore to be reimbursed by the defendant for unjust enrichment pursuant to Sec. 812 I 1 Alt. 1 BGB.
III. Conclusion
What long-term significance does the Federal Court of Justice’s decision have for paid online coaching and other educational online offerings?
First of all, it should be noted that the Federal Court of Justice did not simply follow the strict view of the previous instance, according to which all forms of online teaching are subject to licensing under the FernUSG. Although the Federal Court of Justice left the question as to whether a distinction must be made between synchronous and asynchronous formats open, the fact that it did not simply adopt the reasoning of the previous instance suggests that it considers the arguments in favor of a differentiated treatment to be valid.
The State Central Office for Distance Learning considers this to be confirmation of its legal practice and continues to adhere to this distinction. The authority thus assumes that a distance learning course is subject to licensing if the asynchronous teaching components predominate in relation to the total duration of the course. Providers of commercially distributed online educational offerings should take this into account. To avoid the need for licensing under the FernUSG, it should be ensured while designing the program, that there is a clear focus on synchronous teaching formats.
Summary of the key facts
- Contracts for online coaching/teaching services may require licensing under the FernUSG (Distance Teaching Protection Act)
- The decisive factor is whether the teaching is (predominantly) provided synchronously or asynchronously.
- The FernUSG also applies to B2B relationships.
