1. Art. 13 Abs. 1 Directive 2002/58 / EC of the European Parliament and of the Council of 12. July 2002 on the processing of personal data and the protection of privacy in electronic communication (Privacy policy for electronic communications) in the by Directive 2009/136 / EC of the European Parliament and of the Council of 25. November 2009 the amended version is to be interpreted accordingly, that the display of advertising messages in the inbox of a user of an e-mail service in a form, which is similar to that of an actual email, and in the same place as such an email, a "use of ... electronic mail for the purposes of direct mail" within the meaning of this provision, without the need to determine the recipients of these messages at random or the burden, which is imposed on the user, insofar are of importance, since this use is only permitted under the condition, that the user is clear and precise about the modalities of disseminating such advertising, by name in the list of received private e-mails, was informed and his consent, to receive such promotional messages, for the specific case and with full knowledge of the facts.

2. Anhang I Nr. 26 Directive 2005/29/EC of the European Parliament and of the Council of 11. More 2005 Unfair business practices by companies to consumers in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EG) No.. 2006/2004 of the European Parliament and of the Council (Directive on unfair commercial practices) is to be interpreted as such, that a course of action, that is, in the inbox of a user of an e ‑ mail service advertising messages in a form, which is similar to that of an actual email, and to be displayed in the same place as such an email, falls under the concept of "persistent and undesirable contact" by users of e-mail services within the meaning of this provision, if, on the one hand, these advertisements were displayed so frequently and regularly, that it can be classified as "persistent response", and on the other hand, in the absence of consent given by this user before the display, can be classified as "undesirable addressing".

JUDGMENT OF THE COURT (Third Chamber) from 25. November 2021

…

In Case C ‑ 102/20

REFERENCE for a preliminary ruling under Article. 267 AEUV, from the Bundesgerichtshof (Germany) by decision of 30. January 2020, referred to the Court 26. February 2020, in the process

StWL Municipal Works Lauf a. d. Pegnitz GmbH

against

eprimo GmbH,

Involved:

Interactive Media CCSP GmbH,

adopt

THE COURT (Third Chamber)

with the participation of the President of the Second Chamber A. Prechal in the performance of the duties of the President of the Third Chamber, the judge J. Passer and F. Biltgen, the judge L. S. Rossi (Rapporteur) and the judge N. choice,

Advocate General: J. Richard de la Tour,

Chancellor: A. Calot Escobar,

due to the written procedure,

after considering the observations

- eprimo GmbH, represented by lawyer R. Hall,

- Interactive Media CCSP GmbH, represented by the lawyers D. Frey and M. Rudolph,

- The Portuguese Government, represented by L. Inez Fernandes, A. Guerra and P. Barros da Costa, acting as Agent,

- The European Commission, represented by C. Hödlmayr, F. Wilman, N. Ruiz García and S. Kalėda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24. June 2021

following

Judgment

1 The preliminary ruling concerns the interpretation of Article. 2 Abs. 2 BUCHST. h and art. 13 Abs. 1 Directive 2002/58 / EC of the European Parliament and of the Council of 12. July 2002 on the processing of personal data and the protection of privacy in electronic communication (Privacy policy for electronic communications) (ABl. 2002, The 201, S. 37) in the by Directive 2009/136 / EC of the European Parliament and of the Council of 25. November 2009 (ABl. 2009, The 337, S. 11) amended version (below: Directive 2002/58) as well as from Appendix I No.. 26 Directive 2005/29/EC of the European Parliament and of the Council of 11. More 2005 Unfair business practices by companies to consumers in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EG) No.. 2006/2004 of the European Parliament and of the Council (Directive on unfair commercial practices) (ABl. 2005, The 149, S. 22, Correction in OJ. 2009, The 253, S. 18).

2 It occurs in the context of two legal disputes between the StWL Städtische Werke Lauf a. d. Pegnitz GmbH (below: StWL) and eprimo GmbH - two companies, who deliver electricity to end customers - because of an advertising campaign, which is carried out by Interactive Media CCSP GmbH on behalf of eprimo and consists of displaying advertising messages in the inbox of users of the free “T-Online” e-mail service.

Legal framework

Unionsrecht

3 Recitals 4 and 40 of Directive 2002/58 ring:

„(4) With Directive 97/66 / EC of the European Parliament and of the Council of 15. December 1997 on the processing of personal data and the protection of privacy in the telecommunications sector [ABl. 1998, The 24, S. 1] became the principles of Directive 95/46 / EC [of the European Parliament and of the Council of 24. October 1995 zum Schutz natürlicher Personen bei der Verarbeitung personenbezogener Daten und zum freien Datenverkehr (ABl. 1995, The 281, S. 31)] implemented in specific regulations for the telecommunications sector. Directive 97/66 / EC must be adapted to developments in the markets and technologies for electronic communications services, To offer users of publicly available electronic communication services the same level of protection of personal data and privacy, regardless of the underlying technology. That guideline should therefore be repealed and replaced by this guideline.

…

(40) Precautions should be taken, to prevent participants from violating their privacy through unsolicited messages for direct marketing purposes, especially through automatic calling systems, Fax machines and electronic mail, including SMS, to protect. These forms of unsolicited advertising messages can, on the one hand, be relatively easy and inexpensive to send and, on the other hand, represent a burden and / or expense for the recipient. In addition, in some cases, their size can cause difficulties for electronic communication networks and terminals. Such forms of unsolicited direct mail messages are justified, to demand, obtain the consent of the recipient, before such messages are sent to them. The internal market requires a harmonized approach, making it easy for companies and users, [unions]broad rules apply. "

4 Art. 1 Abs. 1 of this guideline provides:

„(1) This directive provides for the harmonization of the provisions of the Member States, which are required, an equal protection of fundamental rights and freedoms, in particular the right to privacy and confidentiality, with regard to the processing of personal data in the field of electronic communications and the free movement of such data and of electronic communications devices and services in the [European Union] to guarantee."

5 In Art. 2 ("Definitions") Abs. 2 BUCHST. d, It says f and h of the directive:

“Furthermore, in the context of this guideline, the term

d) 'Message' any piece of information, which is exchanged or forwarded between a finite number of participants via a publicly accessible electronic communication service. This does not include information, which are transmitted to the public as part of a broadcast service via an electronic communications network, insofar as the information does not match the identifiable participant or user, who receives it, can be associated;

…

f) “Consent” of a user or participant is the consent of the data subject within the meaning of Directive 95/46 / EC;

…

h) 'Electronic mail' means any text sent over a public communications network, Language, Your- or picture message, which can be stored in the network or in the recipient's device, until it is called up by this ".

6 Art. 13 ("Unsolicited Messages") Abs. 1 the Directive provides:

“The use of automatic call- and communication systems without human intervention (automatic call machines), Fax machines or electronic mail for the purposes of direct advertising may only be permitted with the prior consent of the participants or users. "

7 Der 67. Recital of the Directive 2009/136 is:

"Precautions, that are hit, to protect participants against intrusion into their privacy through unsolicited direct mail sent by electronic mail, should also be for SMS- and [multimedia night focus (MMS)] as well as for similar applications. "

8 Art. 2 BUCHST. h of Directive 95/46 / EC is:

"For the purposes of this guideline, the term

…

h) ,Consent of the data subject ‘any expression of will, those without compulsion, for the specific case and with knowledge of the situation and with which the data subject accepts, that personal data, that concern them, are processed."

9 In Art. 94 ("Repeal of Directive 95/46 / EC") Abs. 2 der Verordnung (I) 2016/679 of the European Parliament and of the Council of 27. April 2016 to protect natural persons when processing personal data, on the free movement of data and the repeal of Directive 95/46 / EC (General data protection regulation) (ABl. 2016, The 119, S. 1) is it [called:

“References to the repealed directive shall be construed as references to this regulation. …“

10 Art. 4 No.. 11 of this Ordinance:

"For the purposes of this ordinance, the term:

…

11. “Consent” of the data subject each voluntarily for the specific case, Informed and unequivocally made declaration of intent in the form of a declaration or some other unequivocal confirmatory act, with which the person concerned gives to understand, that she agrees to the processing of the personal data concerning her;“.

11 Der 17. Recital of the Directive 2005/29 is:

„(17) It is desirable, that those business practices, which are unfair in all circumstances, be identified, to create greater legal certainty. Annex I therefore contains a comprehensive list of such practices. These are the only business practices, those without an assessment of the individual case based on the provisions of the article 5 to 9 can be considered unfair. The list can only be changed by changing this policy. "

12 Art. 5 of that directive:

„(1) Unfair business practices are prohibited.

(2) Business practice is unfair, when

a) it contradicts the requirements of professional due diligence

and

b) they reflect the economic behavior of the average consumer in relation to the respective product, that it reaches or addresses or the average member of a group of consumers, when a business practice is aimed at a specific group of consumers, is significantly influenced or suitable for this, to influence it significantly.

…

(4) Unfair business practices are particularly such, the

a) misleading within the meaning of the article 6 and 7

or

b) aggressive within the meaning of the article 8 and 9 sind.

(5) Appendix I contains a list of those business practices, which are to be regarded as unfair under all circumstances. This list applies uniformly in all Member States and can only be changed by amending this directive. "

13 In Art. 8 the directive says:

“A business practice is considered aggressive, if they make the decision in a specific case, taking into account all the actual circumstances- or freedom from behavior of the average consumer in relation to the product through harassment, coercion, including the use of physical force, or is actually or likely to be significantly impaired by impermissible influence and this is actually or likely to cause it to do so, make a business decision, which he would not have met otherwise. "

14 No.. 26 from Annex I of the Directive, which contains a list of business practices, which are to be regarded as unfair under all circumstances, is:

“Aggressive business practices

…

26. Customers are affected by persistent and undesirable addressing over the phone, Fax, E-mail or other media suitable for distance selling, except in cases and within limits, where such behavior is justified under national law, to enforce a contractual obligation. This applies without prejudice to ... the directives 95/46 / EG and 2002/58 ... "

German law

15 § 3 Abs. 1 and 2 of the Act against Unfair Competition (UWG) (from 3. July 2004, Gazette. 2004 I S. 1414) reads in the version applicable to the main dispute:

„(1) Unfair business dealings are not permitted.

(2) Business dealings, that are aimed at or reach consumers, are unfair, if they do not correspond to the entrepreneurial diligence and are suitable for it, to significantly influence the economic behavior of the consumer. "

16 In § 5a ("Misleading by omission") Abs. 6 It is called UWG:

"Unfair acts ..., wer den kommerziellen Zweck einer geschäftlichen Handlung nicht kenntlich macht, sofern sich dieser nicht unmittelbar aus den Umständen ergibt, und das Nichtkenntlichmachen geeignet ist, to cause the consumer to take a transactional decision, which he would not have met otherwise. "

17 § 7 UWG determined:

„(1) A business act, which annoy a market participant in an unreasonable manner, is not allowed. This is especially true for advertising, although is recognizable, that the addressed market participant does not want this advertising.

(2) Unreasonable harassment is always to be assumed

1. when advertising using one in the numbers 2 and 3 not listed, means of commercial communication suitable for distance selling, which persistently address a consumer, although he clearly does not want this;

…

3. in advertising using an automatic call machine, a fax machine or electronic mail, without the prior express consent of the addressee, or

4. when advertising with a message,

a) at which the identity of the sender, on whose behalf the message is transmitted, is veiled or concealed ...

…“

18 In § 8 It is called UWG:

„(1) Anyone according to § 3 or § 7 undertakes improper business activity, can be claimed for removal and, if there is a risk of repetition, for omission. The right to omission then already exists, if such an infringement of § 3 or § 7 threatens.

…

(3) The claims from paragraph 1 stand by:

1. every competitor;

…“

The main proceedings and the questions referred

19 It appears from the order for reference, that StWL and eprimo are two competing electricity suppliers. Interactive Media CCSP switched on behalf of eprimo, an advertising agency, Advertisements in e ‑ mail inboxes of users of the T ‑ Online e ‑ mail service. This service is financed by advertising paid for by advertisers and made available to users free of charge.

20 The advertisements appeared in the inbox of the private e-mail inboxes of the users, d. h. in that area, in which the incoming e-mails are displayed in a list, embedded in received emails.

21 The users received so on 12. December 2016, am 13. January 2017 and on 15. January 2017 Advertising messages in their inboxes. Entries appeared in it, which only differed visually from the list of other e-mails of the account user, that the date was replaced by the indication "Advertisement", that no sender was given and that the text was highlighted in gray. The subject of the list entry contained a text to advertise favorable prices for electricity and gas.

22 From a technical point of view, on the website called up by the user of such an e-mail inbox, there is a JavaScript code from an ad server at the corresponding point in the inbox (TAG) involved. Hence then, when the user opens the page, a request (Adrequest) sent to the server, who then selects an advertising banner from the pool formed by the advertising customers and transmits it in this way, that it is displayed in the user's inbox. If the user clicks on the displayed advertisement, the input is forwarded to the ad server, which logs the click and forwards the browser to the advertiser's website.

23 The functionality of the T-Online e-mail service treats the receipt of the advertising message in question in the inbox of the users of this e-mail system differently than normal e-mails: This advertising message, which appears in the form of an email, can be deleted from the list, but cannot be archived, changed or transmitted, and it is not possible, to answer it. After all, this advertising message is not included in the total number of e-mails in the inbox and does not take up any storage space there.

24 StWL was of the opinion, that this advertising practice, when electronic mail is used without the prior express consent of the addressee, violates the rules on unfair competition, because they represent an "unreasonable nuisance" within the meaning of § 7 Abs. 2 No.. 3 UWG and misleading within the meaning of Section 5a Para. 6 UWG. StWL therefore sued eprimo for an injunction before the Nuremberg-Fürth regional court. This court upheld StWL's lawsuit and sentenced eprimo under threat of administrative measures, to refrain from such advertising in connection with the sale of electricity to end consumers on the T-Online.de e-mail account.

25 To that of eprimo at the Nuremberg Higher Regional Court (Germany) this court established an appeal, that the disputed placement of the advertising in the inbox of the private T-Online e-mail inboxes is not a commercial act which is not permitted under competition law.

26 In particular, on the one hand, the defendant's advertising does not represent any unreasonable nuisance using "electronic mail" within the meaning of § 7 Abs. 2 No.. 3 UWG is, as this advertising cannot be regarded as “electronic mail” within the meaning of this provision. In any case, the disputed advertising - beyond the "normal" annoying effect of advertising - does not lead to burdens or costs for the user of the T-Online e-mail service and therefore does not cause any "unreasonable annoyance" within the meaning of the general clause of § 7 Abs. 1 Set 1 UWG, especially in view of the fact that this e-mail service is free of charge.

27 On the other hand, this court took the view, that the advertisement in question is not in accordance with § 7 Abs. 2 No.. 4 BUCHST. a UWG is inadmissible, since it is not a question of advertising with news. Also § 7 Abs. 2 No.. 1 UWG is not applicable, since it presupposes an "addressing" in the sense of "urging" a consumer, what is missing in the present case. Because the defendants' advertisements did not obscure their promotional character, Incidentally, no unfairness due to misleading according to § 5a para. 6 UWG are accepted.

28 The Federal Court of Justice dealing with the appeal filed by StWL (Germany) is of the opinion, that the success of the revision depends on the interpretation of Art. 2 Abs. 2 BUCHST. d and h and art. 13 Abs. 1 of Directive 2002/58 and Appendix I No.. 26 of Directive 2005/29 depend.

29 According to the referring court, the conduct alleged against eprimo could in fact be subject to § 7 Abs. 2 No.. 3 UWG, type. 13 Abs. 1 of Directive 2002/58 implement, be inadmissible. Also come into consideration, that the advertising according to § 7 Abs. 2 No.. 1 UWG, Appendix I No.. 26 of Directive 2005/29 implement, is inadmissible.

30 In that regard, the referring court asks the Court to clarify the criteria, for the term "electronic mail" within the meaning of Art. 2 Abs. 2 BUCHST. h of the directive 2002/58 and the term "use" of electronic mail for the purposes of direct mail within the meaning of Art. 13 Abs. 1 of this guideline apply. The referring court is also asking the Court of Justice, the criteria of "contact" within the meaning of Appendix I No.. 26 of Directive 2005/29 to specify.

31 Under these circumstances, the Federal Court of Justice decided, stay the proceedings and refer the following questions for a preliminary ruling to the Court:

1. Is the concept of sending within the meaning of Art. 2 Abs. 2 BUCHST. h of the directive 2002/58 Fulfills, if a message is not sent from a user of an electronic communication service to another user by a service company to the electronic "address" of the second user, Instead, when the password-protected website of an e-mail account is opened, it is automatically displayed by ad servers in certain areas provided in the e-mail inbox of a randomly selected user (Inbox advertising)?

2. Sets a retrieval of a message within the meaning of Art. 2 Abs. 2 BUCHST. h of the directive 2002/58 in advance, that the recipient, after becoming aware of the existence of a message, triggers a program-based transmission of the message data through a will-based request for retrieval, or it is sufficient, if this triggers the appearance of a message in the inbox of an e ‑ mail account, that the user opens the password-protected website of his e-mail account?

3. If there is electronic mail within the meaning of Art. 13 Abs. 1 of Directive 2002/58 even then before, if a message is not sent to an individual recipient who has already been specifically determined prior to transmission, but is displayed in the inbox of a randomly selected user?

4. If the use of electronic mail for the purpose of direct mail within the meaning of Art. 13 Abs. 1 of Directive 2002/58 only then before, if a load on the user is detected, that goes beyond nuisance?

5. If there is an individual advertisement fulfilling the requirements of a "contact" within the meaning of No.. 26 Set 1 of Annex I of the Directive 2005/29 only then before, when a customer is contacted by means of a medium conventionally used for individual communication between a sender and a recipient, or is it enough, if - as in the case of the advertising in question - an individual reference is thereby established, that the advertisement is displayed in the inbox of a private e-mail account and thus in an area, in which the customer expects messages addressed to him individually?

The questions

To the questions 1 to 4

32 With his questions 1 to 4, which should be considered together, the referring court would like to know, on the one hand, ob Art. 2 BUCHST. h and art. 13 Abs. 1 of Directive 2002/58 are to be interpreted accordingly, that the criteria for the term “electronic mail” within the meaning of these provisions are met, if an advertising message after opening the password-protected website, which corresponds to an email account, is displayed in certain areas of the e-mail inbox of a randomly selected user, and on the other, ob Art. 13 Abs. 1 of this guideline is to be interpreted as such, that such an advertising measure only falls under the term "use of ... electronic mail for the purposes of direct advertising" within the meaning of this provision - which requires, that the user of the e ‑ mail system in question has given his prior consent to such a measure - falls, if a load on the user is detected, that goes beyond nuisance.

33 It should be pointed out in order to answer these questions, that the Directive 2002/58 according to their type. 1 Abs. 1 in. a. provides for a harmonization of the regulations of the Member States, which are required, an equal protection of fundamental rights and freedoms, in particular the right to privacy and confidentiality, in relation to the processing of personal data in the field of electronic communications.

34 Like in 40. Recital of this Directive is carried out, aims this u. a. on it, the participants against the invasion of their privacy by unsolicited messages for direct marketing purposes, especially through automatic calling systems, Fax machines and electronic mail, including SMS, to protect.

35 Art. 2 BUCHST. d of the directive 2002/58 contains a broad definition of the term "message", which includes all information, which is exchanged or forwarded between a finite number of participants via a publicly accessible electronic communication service.

36 In this respect, Art. 13 ("Unsolicited Messages") Abs. 1 this policy prohibits the use of various types of communication, namely, from automated calling systems without human intervention (automatic call machines), Fax machines or electronic mail for direct marketing purposes, provided, it takes place with the prior consent of the participants or users.

37 For the application of this provision, therefore, it is first necessary to examine, whether the type of communication, which is used for direct marketing purposes, is one of those covered by this provision, Secondly, whether this communication is aimed at direct marketing, and thirdly, whether the requirement for prior consent from the user has been observed.

38 Firstly, as regards the electronic means of communication, with which direct mail is carried out, must first be pointed out, that, as the Advocate General in No.. 53 has performed his Opinion, the list of im 40. Recital and in Art. 13 Abs. 1 means of communication listed in this guideline is not exhaustive.

39 On the one hand, the directive takes 2009/136, with which the directive 2002/58 was changed, in your 67. Recital to forms of communication other than those in the directive 2002/58 mentioned reference, if it says there, that precautions, that are hit, to protect participants against intrusion into their privacy through unsolicited direct mail sent by electronic mail, “Also for SMS- and MMS messages and similar applications [should]“. On the other hand, must, as in the fourth recital of the directive 2002/58 is clarified, the goal, to ensure, that users of publicly available electronic communications services are offered the same level of protection of personal data and privacy, "Regardless of the underlying technology" can be guaranteed, which confirms, that a broader concept of the type of communication covered by this guideline that can be developed from a technological point of view is required.

40 However, it can be stated, that in the present case the advertising message at issue in the main proceedings was sent to the data subjects using one of the methods set out in Art. 13 Abs. 1 of Directive 2002/58 expressly mentioned means of communication, namely electronic mail, was spread.

41 To that extent, from the point of view of the addressee, the advertising message is actually in the inbox of the user of the e-mail system, d. h. in an area normally reserved for private email, displayed. The user can only clear this area after checking the content of the advertising message and only by actively deleting the same, to get an overview of his exclusively private e-mails. If the user clicks on an advertising message like the one at issue in the main proceedings, so he is redirected to a website with the relevant advertisement, instead of being able to continue reading his private email.

42 Unlike advertising banners or pop-up windows, those at the edge of the list with private messages or. appear separately from these, the display of the advertising messages at issue in the main proceedings in the list of private e-mails of the user thus hinders access to these e-mails in a manner similar to that in the case of unsolicited e-mails (also known as "spam") the case is, as such an approach requires the same decision-making on the part of the participant, as to the handling of these messages.

43 As the Advocate General in No.. 55 has performed his Opinion, also exists, since the advertising messages take up lines in the inbox, normally reserved for private emails, and because of their resemblance to private email, the risk of confusion between these two categories of messages, which can lead to it, that a user, who clicks on the line corresponding to the advertising message, is forwarded against his will to a website containing the relevant advertisement, instead of continuing to consult his private email.

44 If but, as the Commission has pointed out, in the inbox of the Internet mailbox, d. h. in that area, in which all e-mails addressed to the user are displayed, Advertisements of any kind appear, is assumed, that this inbox is the means, with which the relevant advertising messages are transmitted to this user, what the use of his electronic mail for the purposes of direct mail within the meaning of Art. 13 Abs. 1 of Directive 2002/58 means. That means, that the defendant and the intervener in the main proceedings and the e-mail provider involved use the existence of the list of private e-mails, taking into account the interest in and the particular confidence of the participant in relation to that list, to place your direct mail, by making it look like a real email.

45 Such a procedure constitutes the use of electronic mail within the meaning of Art. 13 Abs. 1 of Directive 2002/58 but, die geeignet ist, the aim pursued with this provision, To protect users from a violation of their privacy through unsolicited messages for direct marketing purposes, to affect.

46 In these circumstances the question becomes, whether advertising messages such as those at issue in the main proceedings themselves meet the criteria, who would allow it, it as "electronic mail" within the meaning of Art. 2 BUCHST. h of this guideline, superfluous, because they were sent to the users concerned via their e-mail inbox and thus via their electronic mail.

47 Second, as to the question, whether the news within the meaning of Art. 13 Abs. 1 of the aforementioned directive are aimed at direct mail, to be checked, whether a commercial goal is pursued with such a message and whether it is addressed directly and individually to a consumer.

48 In the present case, the very nature of the advertising messages at issue in the main proceedings allow it, which have the purpose of promoting services, and the circumstance, that they are disseminated in the form of an email, so that they appear directly in the inbox of the private e-mail inbox of the user concerned, these messages as messages for the purposes of direct advertising within the meaning of Art. 13 Abs. 1 of Directive 2002/58 classified.

49 The fact, that the addressee of these advertising messages is selected at random, what is mentioned in connection with the referring court's third question, cannot question this conclusion.

50 In this respect, the reference is sufficient, that, as the Advocate General in No.. 61 has performed his Opinion, the random or predetermined selection of the recipient is not a prerequisite for the application of Art. 13 Abs. 1 of Directive 2002/58 is. That means, that it doesn't matter, whether the advertisement in question is directed to an individually predetermined recipient or whether it is mass and random distribution to numerous recipients. What matters is, that communication was made for commercial purposes, that reaches one or more users of e-mail services directly and individually, by being displayed in the inbox of this user's email account.

51 The addressees of such advertising messages are u. a. but individualized as a user of a specific email provider, because the user only has access to his inbox, after entering his login details and password. As a result, at the end of this authentication process, the user is shown in a private area, reserved for him and intended for consultation of private content in the form of e-mails.

52 Third is, what specifically in Art. 13 Abs. 1 of Directive 2002/58 intended requirement of prior consent, noted, that a message, if it falls within the scope of this provision, is permitted under the condition, that the recipient has previously consented to it.

53 In this respect, Art. 2 Abs. 2 BUCHST. f der Richtlinie 2002/58 in connection with Art. 94 Abs. 2 der Verordnung 2016/679, that this consent meets the requirements of Art. 2 BUCHST. h of the directive 95/46 or. of Art. 4 No.. 11 must comply with the aforementioned regulation, depending on, which of the two provisions is applicable in terms of time to the facts of the main proceedings.

54 Art. 2 BUCHST. h of the directive 95/46 defines the term “consent” as “any expression of will, those without compulsion, for the specific case and with knowledge of the situation and with which the data subject accepts, that personal data, that concern them, are processed".

55 The same requirement also applies under the regulation 2016/679. Art. 4 No.. 11 this regulation defines the “consent of the data subject” as such, that a “voluntary for the specific case, in an informed manner and unequivocally given "declaration of intent of the person concerned in the form of a declaration or a" clear confirmatory act "is required, with which the person concerned gives to understand, that she agrees to the processing of the personal data concerning her.

56 As regards an action for an injunction against an improper commercial act such as that at issue in the main proceedings, is, as the Advocate General in No.. 50 has performed his Opinion, not excluded, that also the regulation 2016/679, provided that the procedure initiated by StWL is aimed at this, that eprimo will refrain from its behavior in the future, is applicable in terms of time in the context of the main dispute, although the facts, which is the basis of this legal dispute, before the 25. More 2018 liegt, the day, on which this Ordinance became applicable and the Directive 95/46 was repealed by this Ordinance with effect from that date.

57 From the above it follows, that such consent must be expressed at least in an expression of will, those without compulsion, for the specific case and with knowledge of the situation.

58 In the present case, it appears from the files submitted to the Court of Justice, that when the e-mail address at issue in the main proceedings is registered, the T-Online e-mail service is offered to users in the form of two categories of e-mail services, namely, on the one hand, a free e-mail service, which is funded through advertising, and on the other hand, a paid e-mail service without advertising. Thus, the users are, who, as in the main proceedings, choose the free option, agree to it, Receive commercials, in order not to have to pay a fee for using this e-mail service.

59 In that regard, however, it is a matter for the referring court, determine, whether the affected user, who opted for the free version of the T-Online e-mail service, was duly informed and actually consented to the exact modalities of the dissemination of such advertising, To receive promotional messages such as those at issue in the main proceedings. In particular, it must be determined on the one hand, that this user is clear and precise and. a. was informed about it, advertising messages are displayed in the list of received private e-mails, and on the other, that he gave his consent, to receive such promotional messages, for the specific case and with full knowledge of the facts (vgl. to that effect from 11. November 2020, Orange Romania, C‑61/19, I:C:2020:901, Rn. 52).

60 Finally, to answer the fourth question, with which the referring court wants to know, whether for the classification of an advertising measure such as that at issue in the main proceedings as "use of ... electronic mail for the purposes of direct mail" within the meaning of Art. 13 Abs. 1 of Directive 2002/58 must be established, that the burden on the user goes beyond a nuisance, to clarify, that this guideline does not prescribe compliance with such a requirement.

61 As the Advocate General in No.. 62 has performed his Opinion, namely results from the 40. Recital of this Directive, that the requirement of prior consent provided for in the aforementioned provision requires its declaration u. a. finds in it, that unsolicited messages sent for the purpose of direct marketing can "mean a burden and / or expense for the recipient". Since such messages fall within the scope of Art. 13 Abs. 1 of Directive 2002/58 fallen, therefore does not need to be checked, whether the burden, which results from this for the recipient, beyond a nuisance.

62 In the present case, it is also clear, that an advertising measure such as the one at issue in the main proceedings actually imposes a burden on the user concerned, because the advertising messages are displayed in the list of private e-mails of the user, as in marg. 42 of the present judgment has been carried out, through this, that it hinders access to these e-mails in a similar way as it does with unsolicited e-mails (Spam) the case is, requires the same decision-making on the part of the participant, as to the handling of these messages.

63 After all of this, it's down to the questions 1 to 4 to answer, dass Art. 13 Abs. 1 of Directive 2002/58 must be interpreted, that the display of advertising messages in the inbox of a user of an e-mail service in a form, which is similar to that of an actual email, and in the same place as such an email, a "use of ... electronic mail for the purposes of direct mail" within the meaning of this provision, without the need to determine the recipients of these messages at random or the burden, which is imposed on the user, insofar are of importance, since this use is only permitted under the condition, that the user is clear and precise about the modalities of disseminating such advertising, by name in the list of received private e-mails, was informed and his consent, to receive such promotional messages, for the specific case and with full knowledge of the facts.

On the fifth question

64 By its fifth question, the referring court wants to know, whether Annex I No.. 26 of Directive 2005/29 must be interpreted, that a course of action, that is, in the inbox of a user of an e ‑ mail service advertising messages in a form, which is similar to that of an actual email, and to be displayed in the same place as such an email, falls under the concept of "persistent and undesirable contact" by users of e-mail services within the meaning of this provision.

65 Art. 5 Abs. 1 of this guideline prohibits unfair business practices and lays down in its para. 2 set the criteria, based on which can be determined, whether a business practice is unfair.

66 Art. 5 Abs. 4 of Directive 2005/29 clarifies, that unfair business practices are particularly such, which are "misleading" within the meaning of Art. 6 and 7 of this guideline or "aggressive" within the meaning of Art. 8 and 9 of the directive are.

67 To this end, it should be noted, that the Directive 2005/29 the rules on unfair commercial practices by businesses vis-à-vis consumers are fully harmonized at Union level and an exhaustive list of 31 Establishes business practices, according to Art. 5 Abs. 5 of the directive are to be regarded as unfair “in all circumstances”. Hence this is what it is, like in 17. Recital of the Directive is expressly clarified, to the only business practices, which - without an assessment of the individual case based on the provisions of Art. 5 to 9 of the aforementioned directive - as such, can be considered unfair (Judgment of 2. September 2021, Peek & Cloppenburg, C‑371/20, I:C:2021:674, Rn. 34 and the case-law cited).

68 According to Appendix I No.. 26 of Directive 2005/29 as "business practice, which is unfair under all circumstances ", in the form of an aggressive business practice, if by a trader “customer… through persistent and undesirable addressing over the phone, Fax, E-mail or other media suitable for distance selling [will], except in cases and within limits, where such behavior is justified under national law, to enforce a contractual obligation ".

69 As in Rn. 48, 50 and 51 of the present judgment has been carried out, an advertising message such as the one at issue in the main proceedings is to be regarded as being addressed directly and individually to the user concerned, since it is distributed in the form of an e-mail and directly in the private inbox of the e-mail system of the relevant user in a private one, password-protected area is displayed, which is reserved for him and in which he only expects messages addressed to him individually.

70 Because of this, the effect of this message is, as the Advocate General in No.. 71 has performed his Opinion, therefore similar to that of individualized direct mail, regardless, whether or not the advertiser has individualized the specific recipient in the technical provision of the message in question and whether this message is treated differently from emails or not in terms of storage space and functionalities in connection with the treatment of an actual email.

71 Under these circumstances, it can be assumed, that such an advertising message "addresses" the users of e-mail services within the meaning of Annex I No.. 26 of Directive 2005/29 represents.

72 However, it remains to be considered, whether such a response is "persistent and undesirable", so that it must be prohibited under all circumstances under this provision.

73 On the one hand, this must be stated, that affected users, as in marg. 21 of the present judgment has been carried out, have received advertising messages three times in the inbox of their private e-mail inboxes, nämlich am 12. December 2016, am 13. January 2017 and on 15. January 2017. Under these circumstances there is such a response, also considering its frequency within a limited period of time, as "persistent" within the meaning of Appendix I No.. 26 of Directive 2005/29 to watch, as the referring court found.

74 On the other hand, with regard to the "undesirability" of such an advertising measure within the meaning of the cited No.. 26 to consider, whether the display of an advertising message such as the one at issue in the main proceedings fulfills that condition, The presence or absence of consent given by this user before the display and any objection he may have expressed to such a promotional procedure must be taken into account. Such a contradiction is also, as the referring court found, proved in the main litigation.

75 Having said that, the fifth question must be answered, that Annex I No.. 26 of Directive 2005/29 must be interpreted, that a course of action, that is, in the inbox of a user of an e ‑ mail service advertising messages in a form, which is similar to that of an actual email, and to be displayed in the same place as such an email, falls under the concept of "persistent and undesirable contact" by users of e-mail services within the meaning of this provision, if, on the one hand, these advertisements were displayed so frequently and regularly, that it can be classified as "persistent response", and on the other hand, in the absence of consent given by this user before the display, can be classified as "undesirable addressing".

Costs

76 The parties to the main proceedings, a step in the action pending before the national court; the decision on costs is a matter for that court. The costs incurred by the other party for submitting observations to the Court, are not recoverable.

On those grounds, the Court (Third Chamber) hereby:

1. Art. 13 Abs. 1 Directive 2002/58 / EC of the European Parliament and of the Council of 12. July 2002 on the processing of personal data and the protection of privacy in electronic communication (Privacy policy for electronic communications) in the by Directive 2009/136 / EC of the European Parliament and of the Council of 25. November 2009 the amended version is to be interpreted accordingly, that the display of advertising messages in the inbox of a user of an e-mail service in a form, which is similar to that of an actual email, and in the same place as such an email, a "use of ... electronic mail for the purposes of direct mail" within the meaning of this provision, without the need to determine the recipients of these messages at random or the burden, which is imposed on the user, insofar are of importance, since this use is only permitted under the condition, that the user is clear and precise about the modalities of disseminating such advertising, by name in the list of received private e-mails, was informed and his consent, to receive such promotional messages, for the specific case and with full knowledge of the facts.

2. Anhang I Nr. 26 Directive 2005/29/EC of the European Parliament and of the Council of 11. More 2005 Unfair business practices by companies to consumers in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EG) No.. 2006/2004 of the European Parliament and of the Council (Directive on unfair commercial practices) is to be interpreted as such, that a course of action, that is, in the inbox of a user of an e ‑ mail service advertising messages in a form, which is similar to that of an actual email, and to be displayed in the same place as such an email, falls under the concept of "persistent and undesirable contact" by users of e-mail services within the meaning of this provision, if, on the one hand, these advertisements were displayed so frequently and regularly, that it can be classified as "persistent response", and on the other hand, in the absence of consent given by this user before the display, can be classified as "undesirable addressing".