A higher regional court had ruled that there was no monitoring of learning progress in the program. No tests, no homework, no certificate. For the provider, this seemed to be the result of a successful procedure. The Federal Court of Justice corrected this assessment in February 2026. It is sufficient that the participant is allowed to ask questions about the subject matter of the course and receive an individual response to them.
This has made the third characteristic of the Distance Learning Protection Act the point at which most programs fail. Anyone who wants to make their offering legally sound must understand how far this criterion extends and draw the correct conclusion from it. That conclusion is usually not to eliminate the support.
clience.legal is a digital business law firm for entrepreneurs. We advise coaches, academies, and mentoring providers from the perspective of the provider. This article introduces the concept of learning success monitoring, evaluates eight typical forms of mentoring, and shows where you should instead focus your efforts meaningfully.
The most important information at a glance
- A right to ask questions is sufficient: Formal examinations, tests, or corrected assignments are not required.
- The contract counts: What matters is the contractual right to individual feedback, not whether a question was ever asked.
- Reference to the learning material is necessary: Pure technical support or organizational information do not meet this criterion.
- Individually instead of collectively: What matters is a personal response, not a general appeal to everyone.
- The line is old: The Federal Court of Justice has followed its jurisprudence here since 2009 and has confirmed it several times in 2025 and 2026.
- The starting point lies elsewhere: Anyone who wants to avoid the law should focus on the contract clause or the form of communication, not on the support provided.
What the law requires
Section 1, paragraph 1, no. 2 of the FernUSG lists as one of three characteristics that the teacher or his/her delegate must monitor the learning success of the learner. The wording is concise and leaves open how this monitoring must look like. It is precisely this gap that the jurisprudence has filled, and in a significant way.
Three elements can be derived from the case law. First, feedback must be individual, that is, it must relate to the specific person and their level of learning. Second, it must be relevant to the material being taught. Third, it must come from the instructor or a person authorized by them, not from other participants.
The line of jurisprudence
The starting point is further back than many providers assume. As early as the judgment of October 15, 2009, the Federal Supreme Court ruled that a contractually agreed option is sufficient for monitoring learning progress: in an accompanying teaching event, individual control of learning progress can be obtained through oral questions about the material.
The Senate has continued this line of reasoning in its decisions since June 2025, and explicitly confirmed it in a failure judgment in February 2026. For providers, this means that there is no strategy for changing the court's ruling. We categorize the individual decisions below: BGH case law on the FernUSG and ZFU approval .
It is the contract that counts, not the practiced practice
This point is most often misunderstood. It does not matter whether questions were actually asked in the program. What matters is whether the participant had a right to such questions under the contract.
This leads to two practical consequences. First, it is not helpful if question rounds have failed in the specific case or the participant has never participated. Second, the sales side is involved. If weekly question rounds are advertised there, it is difficult to argue in the process that this service was not due. The landing page, webinar, and contract are read together.
Conversely, this also means that a carefully prepared performance description is your most important tool. Those who accurately describe what support is owed and what is not will determine the basis on which it is subsequently evaluated. We show you how in the following example: Contract drafting for online coaching contracts.
Why the criterion is so far-reaching
The scope of the regulation initially seems disproportionate to providers. However, it follows from the purpose of the provision. The law aims to protect participants from having to pay for a learning offer whose quality they cannot assess before the contract is concluded. The legislator has provided for a preliminary state inspection to ensure this.
If monitoring of learning outcomes were interpreted strictly and formal examinations were required, the scope of application could be circumvented by simply eliminating tests. Exactly those offerings where protection is most necessary would then be excluded. The Federal Court of Justice has also applied this idea to the question of minimum quality and explicitly stated that no quality requirements should be imposed on the content provided.
For the practice, this means that arguments based on a narrow interpretation of the wording do not stand up in court. Anyone who wants to shape their offer must focus on the substance and not on the wording.
Eight care formats under review
The following classifications provide the direction. The individual case decides, because it depends on the specific contractual arrangement.
Formats that regularly meet the criterion
- Live Q&A with individual answers: The core case of the case law. A promised Q-and-A call, in which participants can ask questions about the material, meets this criterion.
- Feedback on submitted works: Anyone who reviews and comments on drafts, concepts, or tasks is fulfilling it anyway.
- Support in a group with provider participation: If the provider or their team answers content-related questions in the community, an individual feedback on the learning material is provided.
- Certificate after completion of the exam: The most obvious case, because an assessment of the learning level takes place here.
Formats that do not quite meet the criteria
- Pure peer community without providers: Only the participants themselves exchange information; there is no control by the teacher or his/her delegate.
- Technical support: Information about access data, dates, or platform-related questions has no connection to the course material.
- Automated self-tests without evaluation: A quiz that simply indicates whether something is correct or incorrect is not an individual control by the teacher. However, if the result is evaluated and reported personally, the assessment is skewed.
- General address to all: A newsletter or a voice message to the entire group without any reference to individual learning levels is not in itself sufficient.
Why this characteristic is hardly avoidable
In theory, any individual feedback on the material could be excluded. In practice, this devalues most offerings, because support is precisely what participants pay more for compared with a pure video course. A program without any opportunity to ask questions is, economically, a different product.
In addition, there is a practical problem. Even if the contract does not provide for support, it arises in day-to-day practice. A provider who answers a content-related question in the group creates facts that will be used against them in a dispute. A contract that does not reflect reality does not help.
The conclusion is therefore: Do not use support as your lever. Anyone who tries to eliminate the third characteristic makes the product worse and gains little.
The most common misconception: the certificate
After the first judgments, many providers dropped their certificate of completion, assuming this would eliminate the characteristic. The effect is minimal, because the certificate was only one of several points of reference. As long as content-related questions are answered, the characteristic remains satisfied.
However, dropping it comes at a price. For many customers, proof of participation is a selling point, especially if the employer bears the costs or public funding is involved. Those who drop it lose revenue without significantly reducing the legal risk.
The reverse order makes more sense. First, clarify whether your program falls within the scope of the law at all based on the other two characteristics. Once the result is clear, you can decide whether approval is the better route. In that case, the certificate even becomes an advantage, because it then rests on a verified foundation.
Where you should start instead
The other two features provide more leeway, and it is here that the more recent case law has created starting points.
The first characteristic concerns the focus of the range of services. If the focus lies on individual support developed around the specific case rather than on structured knowledge transfer, the applicability of the law is questionable. This is not a question of wording but a product decision: less curriculum, more work on the individual case.
The second characteristic concerns spatial separation. The Federal Court of Justice (BGH) focuses on the communicative character. A program that consists predominantly of mandatory, simultaneous sessions with genuine interaction and does not offer recordings as a substitute may fall outside the scope of the law. Both routes can be designed, but only by changing the product. We describe the overall order of review in overview of online coaching law and in the legal advice on the Distance Learning Protection Act (FernUSG) for online coaches.
Both paths have their own costs. A shift to individual support reduces scalability because fewer participants per hour of support are possible. A predominantly live-led program ties up appointments and makes it difficult to sell to participants in other time zones. Which option is economically advantageous can only be assessed in terms of price, margin, and target audience, and this very calculation should be at the beginning of the consideration process, not at the end.
What belongs in the service description
- Type of feedback: Whether individual questions about the material are answered, in what context and with what response time.
- Channels: Which channels are provided for content-related questions and which are explicitly intended only for the organization.
- Exclusions: That no assessment of learning progress, no examination and no proof of learning success is owed, if that is the case.
- Role of the community: Whether the provider is involved in the content or whether the exchange takes place among participants.
It is important that these statements match actual practice. A description that contradicts the actual process does more harm than open wording. For further guidance, see why a professional coaching contract is indispensable, Have an attorney draft your coaching contract and the typical problems with online business coaching contracts.
What you should check in your existing business
An adjustment only takes effect for the future. For contracts already concluded, the situation at the time the contract was concluded remains decisive, which is why an assessment of the existing portfolio is part of the review.
- Ongoing installment agreements: If contracts are void, there is no basis for further payments. Anyone who rigorously collects outstanding installments without having checked the legal situation increases the risk of a counterclaim.
- Completed programs: Check which cohorts ran under which contract template and what the volume was in each case. This figure is the basis of any risk assessment.
- Communication with participants: Respond to repayment claims factually and without making concessions on the legal position. Wording from the first reply regularly reappears later in court briefs.
- Documentation of the program structure: Preserve records of how the program was actually structured, such as schedules, the scope of recordings, and participation rates. This information supports the assessment of the other two characteristics.
Depending on the volume, it may make sense to proactively clean up the existing portfolio rather than wait for repayment claims. Which approach works depends on the number of contracts affected and on the economic situation.
Related: Drafting a legally sound online coaching contract and FernUSG check for coaches.
Send us your service description, the contract, and an overview of the support formats, including frequency and channel. We will tell you how the third characteristic should be assessed in your case, whether structuring via the other two characteristics makes sense, and what this means for your existing business. To do so, schedule an free initial consultation of 15 to 20 minutes. We will then handle the implementation as part of our Drafting of contracts and T&Cs.
FAQs
What does monitoring of learning success mean under the FernUSG?
§ 1(1) No. 2 FernUSG requires that the instructor or their agent monitors the learning success. According to case law, a contractually granted opportunity to ask questions about the material in an accompanying session and to receive individual feedback is sufficient. Formal examinations or corrected assignments are not required. What matters is the individual reference and the connection to the material taught.
Is a weekly question-and-answer call enough?
As a rule, yes. This very case forms the core of the case law, because individual questions about the material are answered there. The fact that participation is voluntary or that individual sessions are canceled does not change this, as long as the contractual entitlement exists. Anyone who advertises such calls should assume that the characteristic is met.
Does it matter whether questions were actually asked?
No. What matters is the contractual entitlement, not actual use. A participant who never took part in a Q&A session can still later rely on the characteristic having been met. For the same reason, it does not help if sessions in the specific program were canceled.
Does a community group meet the criterion?
It depends on who answers. If the provider or their team is involved in the content of questions about the learning material, there will be individual feedback from the teacher or their delegate. If participants only exchange information among themselves, this is not the case. In practice, the distinction is delicate because providers almost always contribute to the group discussions.
Are automated tests within the course platform sufficient?
A quiz that only indicates correct or incorrect answers is not in itself a form of control by the teacher or their delegate. However, if the results are evaluated and reported individually, the assessment changes. Even automated evaluation that leads to personal feedback can suffice. The technical implementation is less important than the personal aspect.
Does it help to exclude any monitoring of learning success in the contract?
Only if actual practice matches it. A clause that excludes questions on the substance while the provider answers such questions in the group every day will not help much in a dispute. Furthermore, a program without any opportunity to ask questions is, economically, a different product. Structuring via the other two characteristics usually makes more sense.
What applies to pure individual coaching?
There, individual feedback is practically always available, so the third criterion is met. The first criterion is then decisive: If the focus is on individual, tailored advice and support rather than structured knowledge dissemination, the applicability of the law is questionable. Mixtures involving extensive course content alongside individual coaching are risky.
Does the sales page play a role?
Yes. In the event of a dispute, the contract and advertising will be read together. Anyone who advertises weekly question-and-answer sessions, personal support, or individual feedback can hardly argue in court that these services were not due. Therefore, be sure that the landing page, webinar, sales call, and contract all describe the same service.
What changes if the characteristic is met?
This means only one of the three characteristics is met. The law applies only if there is also a paid imparting of knowledge and skills with a corresponding contractual focus and predominantly spatial separation. If all three are met and the approval under § 12 FernUSG is missing, the contract is void under § 7(1) FernUSG and the fee must be repaid.
When is it worth involving an attorney on this question?
As soon as your program includes a support component, a review is worthwhile, because the third characteristic is then regularly met and the decision turns on the other two characteristics. We assess your specific range of services, check that the contract and the sales page are aligned, and set out the structuring options that are economically viable. If a repayment claim has already been made, we develop the line of defense before a hasty reaction weakens your position.
