A Norwegian issue with the way Nintendo handles eShop cancellations, as in they completely refuse to do so, has now been escalated to the German courts. The German Consumer Protection Authority is taking legal action against Nintendo of Europe over their “all sales are final” policy in a case that may have rippling effects across Europe and beyond.
Nintendo's eShop lets you preorder games as much as you want as long as the listing is there. Unfortunately, if you decide you don't want the game for whatever reason, you can't cancel the preorder under any circumstances. This runs afoul of a number of European consumer protection laws, which Norway had a problem with earlier this year. Since Nintendo of Europe is based in Germany, the case has been moved there.
Nintendo's defense here is that preloading means that the transaction has already begun, whether the preloading itself has started or not. The company is citing article 16 of European Consumer Law Directive 2011/83, which states that cancellations can be ignored if “the performance has begun with the consumer's prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader”.
Basically, Nintendo is saying that preloading the game means that you already own it, whether you can launch it or not. That makes it void for a cancellation.
It remains to be seen whether Nintendo's defense will hold water, as it is seemingly an inventive use of that article. Should Nintendo fail to defend against this, however, it will be interesting to see whether they change the eShop rules at all and whether they make worldwide changes or make them specific to Europe. The entire process could be drawn out for months to a year, so it might be too early to speculate how everything shakes out.