The question rarely comes up when things are quiet, but after an email. A participant has taken legal advice, speaks of nullity and demands the entire fee back. From that moment on, it matters what the program description said months ago, how the calls were structured and whether recordings were available. The answer is decided not by the name of the offer but by a law from 1976.
The good news: the review can be structured. Between June 2025 and February 2026, the Federal Court of Justice (BGH) set so many standards in six decisions that a reliable order of review can be derived from them. The less good news: the answer depends on the specific program and cannot be given across the board.
clience.legal is a digital business law firm for entrepreneurs. We advise coaches, academies, and mentoring providers from the provider perspective and review program design, sales process, and contracts together. This article walks you through the three requirements of § 1, paragraph 1 of the FernUSG and applies them to five typical program formats.
The most important information at a glance
- Three criteria, and all three must be met: paid imparting of knowledge and skills, predominantly spatial separation and monitoring of learning success.
- The focus is decisive: If it lies on imparting knowledge, the Act applies. If it lies on individual advice and support, that speaks against its application.
- Spatial separation is interpreted narrowly: The communicative nature is decisive. Mostly simultaneous exchange speaks against distance learning; recordings count towards the asynchronous portion.
- A right to ask questions is sufficient for monitoring learning success: Tests or homework are not required.
- B2B does not help: The Act also applies to contracts with entrepreneurs within the meaning of § 14(1) BGB.
- The legal consequence is severe: Without approval under § 12 FernUSG, the contract is void under § 7(1) FernUSG and the fee must be repaid.
Why the review is necessary in the first place
It makes sense to start with the legal consequence, because it explains the economic scale. Anyone who sells a distance learning course that requires approval without having that approval concludes contracts that are void under § 7(1) FernUSG. The participant can reclaim the amount paid under § 812(1) sentence 1 alt. 1 BGB.
Compensation for the value of services already rendered is only possible if the provider specifically demonstrates that the participant saved expenses as a result of the services. In the cases decided, providers failed to do so. In practice, this means that the full program price is at stake, regardless of how much has already been delivered.
In addition, there is a portfolio risk. Not only the current customer is affected, but every contract concluded on the same template. The review is therefore not a question of the individual case but of the business model. We classify the individual decisions and their consequences in our overview of BGH case law on the FernUSG and ZFU approval .
Six decisions, one line
Case law has consolidated considerably within a short time. It began with the judgment of June 12, 2025, in which a nine-month business mentoring program was held void for lack of approval, expressly also vis-à-vis a business participant. In October 2025, the panel confirmed this line.
In early 2026, four further decisions followed that sharpened the standard. The leading decision of January 15, 2026 clarifies that the question must be answered not in the abstract but on the basis of the specific range of services, with the main focus of the contract as the decisive criterion. On February 5, 2026, the panel interpreted the criterion of spatial separation restrictively and at the same time addressed the constitutionality of the approval requirement, which it affirmed. In mid-February 2026, it clarified that a right to ask questions is already sufficient for monitoring learning success.
For providers, this results in a mixed picture. The application to business customers has been definitively settled, closing one line of defense. At the same time, with the focus criterion and the narrower interpretation of spatial separation, the panel has created two points at which programs can be designed in a legally sound manner.
The order of review in three steps
§ 1(1) FernUSG lists three criteria. They must be met cumulatively. If one is missing, the Act does not apply. Check them in this order, because the first step most often decides the outcome.
Step 1: Imparting knowledge and skills
The Federal Court of Justice interprets the terms broadly. They cover the imparting of any knowledge and skills, regardless of content. The panel expressly does not require a minimum quality, because otherwise precisely the offerings most in need of protection would fall outside the scope.
What matters, therefore, is not whether knowledge is imparted, but the focus. The leading decision of January 2026 looks at whether the specifically agreed range of services is predominantly aimed at imparting knowledge and skills or at individual and personal advice and support for the customer. The panel classifies a modular program with lessons to be worked through chronologically, workbooks and in-depth units as imparting knowledge.
Practical test question: Could your program essentially be run identically with another participant? If so, the focus is on knowledge dissemination. If the process is tailored to the individual case and there would be no content at all without the specific client, that indicates consulting.
Step 2: Predominantly spatial separation
According to the wording, every online format would be covered, because teacher and learner are in different places. In February 2026, the Federal Court of Justice interpreted the provision restrictively. Spatial separation only exists insofar as knowledge is imparted across the distance and not through two-way, simultaneous communication in which the participant can make contact without any particular effort. The original distinction between direct instruction and self-study using materials provided is decisive.
Two conclusions are of practical importance. First, the panel attributes recordings of live sessions to the asynchronous portion, even if the session originally took place simultaneously. Second, what matters is predominance, i.e. the content and significance of the parts, their duration, whether participation is voluntary and whether recordings make live attendance unnecessary.
The burden of proof for spatial separation lies with the party relying on the FernUSG, i.e. usually the participant. However, the panel indicates a secondary burden of presentation on the provider if the contract describes the teaching concept only superficially. Anyone who stays vague here gives away their best defensive position.
Step 3: Monitoring of learning success
This step is most often underestimated. Formal examinations, tests, or corrected homework are not required. It is sufficient if the contract grants the participant the right to ask oral questions about the learning material during an accompanying event and thus receive individual feedback.
Thus, virtually every program with promised question rounds meets this criterion. The absence of certificates, final tests, and assignments does not change this. Anyone who wants to exclude this feature would have to forgo any form of individual feedback on the material, which would devalue most offerings in terms of content.
Five program formats under review
The following classifications show the direction. They do not replace a review of the specific contract, because it is precisely the agreed details that matter.
Pure self-study course without support
Video library, work materials, no contact with the provider. Steps 1 and 2 are met; step 3 is missing as long as no individual feedback on the material whatsoever is owed. The Act then does not apply. Be careful with support channels and community groups in which the provider answers questions on the content, because step 3 may then be met again.
Modular group program with weekly calls
The most common format and at the same time the clearest result. Structured content meets step 1; the focus is on imparting knowledge. The video library and the recordings provided establish the asynchronous portion, so step 2 is met. The Q&A sessions meet step 3. Under current case law, this format regularly requires approval.
Predominantly live group program
Mandatory live sessions with genuine interaction, little pre-produced material, no recordings or only supplementary ones. Here, step 2 may be missing, because knowledge is imparted predominantly through simultaneous communication. What matters is whether this character is also reflected in the contract and whether you can prove it in a dispute, for example through attendance obligations, frequency of sessions and the handling of recordings.
One-on-one mentoring with individual support
If the process is developed around the specific case, the focus is on advice and support, so that even step 1 becomes doubtful. Hybrid formats in which one-on-one coaching comes with an extensive course area are risky. The question then is which part characterizes the contract, and the answer follows from the service description and the share of the price.
Mastermind or community with expert formats
If the focus is on exchange among the members, there is no imparting of knowledge by the provider. However, as soon as a structured curriculum, fixed learning paths or regular training sessions are added, the focus shifts again. Here too, what is decisive is what is owed under the contract, not what actually happens in the community.
What the check cannot do
Honesty requires three caveats. First, classification is always a case-by-case question that the Federal Court of Justice expressly refuses to answer in the abstract. Second, what matters is what was agreed in the contract, not actual practice, and in reality the sales page and the contract often diverge. Third, a subsequent adjustment does not change existing contracts. Anyone who restructures their program has not thereby eliminated the portfolio risk. We show how this risk can be limited in typical problems with online business coaching contracts.
Your options depending on the result
If the review shows that approval is required, there are two options. The first is restructuring: the offer is designed so that the focus is clearly on individual support or on predominantly simultaneous instruction. This is not relabeling but a change to the product, which must be reflected in the service description, session structure and pricing. The second option is approval by the State Central Office for Distance Learning (ZFU). It permanently eliminates the risk of nullity and can be used in sales as a mark of quality.
Which option is economically viable depends on the program design, the price and your growth plans. In both cases, the contract must be adapted, because the service description, payment plan and termination rules must match the chosen option. We support this as part of our legal advice on the Distance Learning Protection Act (FernUSG) for online coaches and the Contract drafting for online coaching contracts.
What you should include in the contract
Regardless of the outcome of the review, the description in the contract determines how strong your position is in a dispute. Four points are particularly effective.
- Formats with duration and number: How many live sessions, how long, at what intervals, and how much pre-produced material is included. These details underpin the assessment of spatial separation.
- Mandatory attendance and recordings: Whether live appointments are binding and whether recordings are provided. Both directly influence the weighting between the synchronous and asynchronous components.
- Type of support: Whether individual questions on the material are owed or whether support is provided case by case. This is often where the focus is decided.
- Definition of the service: What is explicitly not owed, such as legal, tax or investment advice, and that a specific economic success is not the subject of the contract.
It is important that these details match the sales page. If the contract and advertising diverge, the contradiction will, in case of doubt, be interpreted against the provider, because the provider is responsible for the description.
Five mistakes in self-assessment
- The offer is renamed instead of actually shifting the focus of the contract.
- Only the contract is reviewed, not the sales page, although both are read together.
- Recordings of live calls are counted as part of the synchronous portion.
- Dropping homework and tests is considered sufficient to rule out monitoring of learning success.
- The target group is limited to entrepreneurs on the assumption that the Act will then not apply.
Each of these points can be remedied before the next sales launch. The effort is small compared to a refund claim covering the entire program price. You can find further information on the contract side in why a professional coaching contract is indispensable and Have an attorney draft your coaching contract.
Related: Drafting a legally sound online coaching contract.
Send us your program description, the contract, the sales page and a brief overview of the formats with duration and attendance requirements. We will tell you where your program stands under current case law, which option makes more economic sense and what needs to be adjusted in the contract documents. To do so, book a free initial consultation of 15 to 20 minutes. You can find the bigger picture in our overview of online coaching law as well as in the Drafting of contracts and T&Cs.
FAQs
What three requirements does the FernUSG set out?
§ 1(1) FernUSG requires, first, the paid imparting of knowledge and skills on a contractual basis; second, an exclusive or predominant spatial separation between teacher and learner; and third, monitoring of learning success by the teacher or their representative. All three criteria must be met together. If one is missing, the Act does not apply to the contract.
Does it matter whether it is called coaching, mentoring or training?
No. The Federal Court of Justice expressly looks at the specifically agreed range of services, not at the label. What matters is whether the focus is on imparting knowledge and skills or on individual and personal advice and support. Renaming without changing the product therefore provides no certainty.
Does my program also fall under the law if I only coach entrepreneurs?
Yes. The Federal Court of Justice has repeatedly clarified that the FernUSG is not limited to consumers and also applies without restriction to entrepreneurs within the meaning of § 14(1) BGB. A contractual confirmation of entrepreneur status does not change this either. The route of classifying participants as founders or traders is therefore closed.
Is it enough to forgo homework, tests, and certificates?
No. For monitoring learning success, a contractually granted right to ask oral questions about the material in an accompanying session and thereby receive individual feedback is already sufficient. Anyone who promises weekly Q&A sessions generally meets this criterion. Dropping formal assessment elements merely shifts the review to the other two criteria.
Do recordings of live calls count as simultaneous instruction?
No. The Federal Court of Justice attributes recordings of synchronous sessions that are later made available on demand to the asynchronous portion. Anyone who routinely records live sessions and makes them permanently available thus strengthens the criterion of spatial separation. For the overall assessment, what matters is whether the recordings make attendance at the live sessions unnecessary.
What happens if the approval is missing?
The contract is void under § 7(1) FernUSG, and the participant can reclaim the fee paid under § 812(1) sentence 1 alt. 1 BGB. Compensation for the value of services rendered is only possible if the provider specifically demonstrates that the participant saved expenses as a result, which rarely succeeds in practice. Moreover, not only the individual contract is affected, but every contract based on the same template.
Who has to prove what in court?
The burden of presentation and proof for the requirements of the FernUSG generally lies with the party relying on them, i.e. usually the participant. However, the Federal Court of Justice indicates a secondary burden of presentation on the provider if the contract describes the teaching concept only superficially or in meaningless terms. A precise service description is therefore also advantageous in procedural terms.
Does it help to restructure the program afterwards?
For the future, yes; for existing contracts, no. The situation at the time the contract was concluded is decisive, so existing contracts are assessed according to the same criteria as before. Any restructuring should therefore always be combined with an assessment of the portfolio risk, including the question of how to deal with ongoing installment payments and outstanding receivables.
How does approval by the Central Office for Distance Learning (ZFU) work?
The provider submits the course documents, in particular the course materials, contract documents and information on support. Among other things, the review examines whether the course is suitable for achieving the stated course objective. The procedure takes time and may require changes to the program. In some cases, restructuring the offer is the more economically viable solution.
When is it worth hiring a lawyer for a FernUSG check?
As soon as you offer a multi-part program for a fee, a review pays off. We classify your offer based on current case law, assess the risk for existing contracts and align program structure, sales page and contract. If a refund claim has already been made, we review the contractual situation and develop a line of defense before a hasty reaction weakens your position. The economic leverage is high, because in a dispute the entire program price is at stake.
