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.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
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<\/a> .<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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<\/a>.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n The following classifications provide the direction. The individual case decides, because it depends on the specific contractual arrangement.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n The other two features provide more leeway, and it is here that the more recent case law has created starting points.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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<\/a> and in the legal advice on the Distance Learning Protection Act (FernUSG) for online coaches<\/a>.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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<\/a>, Have an attorney draft your coaching contract<\/a> and the typical problems with online business coaching contracts<\/a>.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Related: Drafting a legally sound online coaching contract<\/a> and FernUSG check for coaches<\/a>.<\/p>\n\n\n\n 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<\/a> of 15 to 20 minutes. We will then handle the implementation as part of our Drafting of contracts and T&Cs<\/a>.<\/p>\n\n\n\nIt is the contract that counts, not the practiced practice<\/h2>\n\n\n\n
Why the criterion is so far-reaching<\/h2>\n\n\n\n
Eight care formats under review<\/h2>\n\n\n\n
Formats that regularly meet the criterion<\/h3>\n\n\n\n
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Formats that do not quite meet the criteria<\/h3>\n\n\n\n
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Why this characteristic is hardly avoidable<\/h2>\n\n\n\n
The most common misconception: the certificate<\/h2>\n\n\n\n
Where you should start instead<\/h2>\n\n\n\n
What belongs in the service description<\/h2>\n\n\n\n
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What you should check in your existing business<\/h2>\n\n\n\n
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