The Norwegian Consumer Council first spoke out against the policy in early 2018, but the complaint reached Germany because that's where Nintendo of Europe is based.
The Council wrote an open letter to Nintendo, part of which reads:.
"According to the right of withdrawal laid down in the Consumer Rights Directive, such terms are illegal.
Until the game can be downloaded and launched, the seller cannot prohibit the consumer from cancelling their pre-order.".
Meanwhile, Nintendo's e-shop doesn't even allow you to pre-order a title unless you waive your right to get your money back.
You'd have to check a box that reads: "I consent that Nintendo begins with the performance of its obligations before the cancellation period ends.
Nintendo defended its policy in the past by citing article 16 of the 2011/83 European Consumer Law Directive (PDF), which lists all the exceptions from the right of withdrawal. »