## Introduction
Since January 1, 2025, Germany has required all companies to use ZUGFeRD, a standard for electronic invoicing developed by the Forum Elektronische Rechnung Deutschland (FeRD), a private association. Designed to drive digitalization, this mandate raises serious questions: Can a private entity control a legally binding standard in a democracy? And what happens when access to it hinges on undisclosed conditions?
## The Core Issue
The German government mandates compliance with ZUGFeRD, with the standard available for download on the FeRD website. To access it, users must:
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Submit personal data
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Check a box agreeing to: “Yes, I accept the disclaimer and usage rights outlined below.*“
The catch? The conditions marked with an asterisk (*) are nowhere to be found on the site. Users are agreeing to terms they cannot see.
## Democratic and Legal Concerns
This setup poses critical questions:
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Democratic Legitimacy: Forcing citizens to accept private terms to meet legal obligations clashes with Germany’s rule-of-law principle (Article 20(3), Grundgesetz).
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Privatized Law: The state effectively hands control of a legal mandate to a private group with opaque rules.
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Legal Clarity: Laws must be transparent; hiding a standard’s details behind inaccessible terms undermines this.
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Separation of Powers: The executive shouldn’t add barriers beyond what lawmakers intended.
### Legal Foundations
Germany’s legal system requires accessible norms:
| Legal Basis | Meaning | ZUGFeRD Relevance |
|---|---|---|
| Article 20(3) GG | Law binds all branches of government | Demands transparency |
| BVerfGE 65, 1 | Citizens need reasonable access to norms | Supports open standards |
| § 305(2) BGB | Terms must be clear at contract signing | Unseen conditions don’t bind |
| § 305c BGB | Hidden clauses are void | Guards against surprises |
## Why the Hidden Terms Don’t Hold Up
### No Valid Agreement
Under § 305(2) of the German Civil Code (BGB), terms must be explicitly presented and reviewable when agreed to. A vague asterisk (*) linking to invisible “disclaimers and usage rights” doesn’t cut it. Germany’s Federal Court of Justice (BGH) has long held (e.g., June 15, 1976, VI ZR 171/75) that consent to unknown terms isn’t binding.
### No Retroactive Fix
Even if terms arrive later—say, in a downloaded file—they can’t retroactively apply. Per a 2011 BGH ruling (VIII ZR 289/09), both parties must explicitly agree to late-added terms; using the standard doesn’t imply consent.
### Evidence of the Problem
The issue isn’t new. The Internet Archive shows the same setup on January 20, 2025, at this archived page. On May 15, 2025, the site’s HTML was hashed (SHA-256: d474f1c3834dc58ae017f9669901a8d60351b8c71c85a27e8f95237ee17a309e), confirming no change.
## Conclusion
Here’s the twist: While Germany mandates ZUGFeRD, the hidden terms aren’t legally enforceable because they’re not disclosed upfront. Companies can use the standard without being bound by FeRD’s unseen conditions—an odd but legally sound loophole.
Yet the deeper issue remains: A democratic state shouldn’t force citizens to navigate private, opaque terms to meet legal duties.
> Legal Disclaimer:
>
> This article does not constitute legal advice and is not a substitute for consulting a qualified attorney. The author is not a lawyer. The information and analyses presented here are based on publicly available sources and personal assessments. For specific legal questions or issues related to the ZUGFeRD standard, please consult a specialized attorney in IT law or administrative law. Note that the legal situation may change after the publication of this article.