Some Things Never Change… Including, Apparently, T&Cs In Germany

Common Way to Make Changes to Consumer Terms & Conditions Invalidated by German Federal Court, Creating Enforcement Risk and Need to Re-evaluate Clauses

With a judgment dated April 27 and published on June 4, 2021, the German Federal Court (Bundesgerichtshof - the "Court") declared unfair and therefore illegal and unenforceable a common way to make changes to terms and conditions ("T&Cs") used vis-à-vis consumers in Germany.

• While grounded in EU-wide minimum rules, Germany's regime for T&Cs in consumer contracts is particularly strict, leading to many internationally accepted clauses being considered unfair, illegal and unenforceable by the German courts.
• This already included the vast majority of "change clauses," i.e. clauses that allow businesses to make unilateral changes to their T&Cs with effect for existing customers under ongoing agreements (e.g., subscriptions).