a) Effective consent to telephone advertising within the meaning of § 7 Abs. 2 No.. 2 Fall 1 UWG is not available, if the consumer is confronted with a complex procedure for deselecting partner companies listed in the list when declaring consent, that can make him do it, to refrain from exercising this choice and instead to leave the choice of advertising partner to the entrepreneur. The consumer does not know due to a lack of knowledge of the content of the list and without exercising the right to vote, the products or services of which entrepreneurs recorded the consent, there is no consent for the specific case.
b) § 15 Abs. 3 Set 1 With regard to Art. 5 Abs. 3 Set 1 of Directive 2002/58 / EC to be interpreted in accordance with the directive, that the service provider may only use cookies to create user profiles for advertising or market research purposes with the consent of the user. An electronic consent to be given by the user, which allows the information stored on his end device to be called up using cookies by means of a preset checkbox, This consent requirement is not sufficient.

Urteil BGH I ZR 7/16 from 28. More 2020 – Cookie consent II
Directive 2002/58 / EC Art. 5 Abs. 3 and Art. 2 BUCHST. f; Directive 2009/136 / EC Art. 2 No.. 5; Directive 95/46 / EC Art. 2 BUCHST. h; regulation (I) 2016/679 Art. 4 No.. 11; UKlaG § 1; BGB § 307 Bm, Cl; TMG § 15 Abs. 3

a) Effective consent to telephone advertising within the meaning of § 7 Abs. 2 No.. 2 Fall 1 UWG is not available, if the consumer is confronted with a complex procedure for deselecting partner companies listed in the list when declaring consent, that can make him do it, to refrain from exercising this choice and instead to leave the choice of advertising partner to the entrepreneur. The consumer does not know due to a lack of knowledge of the content of the list and without exercising the right to vote, the products or services of which entrepreneurs recorded the consent, there is no consent for the specific case.
b) § 15 Abs. 3 Set 1 With regard to Art. 5 Abs. 3 Set 1 of Directive 2002/58 / EC to be interpreted in accordance with the directive, that the service provider may only use cookies to create usage profiles for advertising or market research purposes with the consent of the user. An electronic consent to be given by the user, which allows the information stored on his end device to be called up using cookies by means of a preset checkbox, This consent requirement is not sufficient.
BGH, Judgment of 28. More 2020 – I ZR 7/16 – OLG Frankfurt am Main
LG Frankfurt am Main
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There I. Civil Division of the Federal Court from the oral negotiation 30. January 2020 by the presiding judge Prof. Dr. Koch, the judge Dr. Loeffler, Judge Dr. Schwonke, the judge Feddersen and the judge Dr. Schmaltz
hereby:
The revision of the defendant against the judgment of 6. Civil Division of the Higher Regional Court of Frankfurt am Main from 17. December 2015 will be rejected with the stipulation, that the addition mentioned in the second paragraph of the judgment tensor reads “(…) if this provision is used in conjunction with a list as in Appendix K 1 reproduced on the application”.
Upon the plaintiff's revision, the aforementioned judgment in the cost item and to that extent is annulled, has been recognized as to the detriment of the plaintiff.
The defendant's appeal against the judgment of the Frankfurt am Main Regional Court will be extended – 6. Civil Chamber – from 10. December 2014 rejected.
The plaintiff has to pay the costs of the first instance litigation 1/3 to wear. The defendant is responsible for the remaining costs of the legal dispute.
Of right
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Facts:
The plaintiff is the one in the list of qualified entities according to § 4 UKlaG registered federal association of consumer centers. The defendant offers participation in competitions on the Internet.
At the 24. September 2013 the defendant organized at the Internet address “www. .of” a competition. After entering the post office- number of users came to one page, were to be entered on the name and address of the user. Below the input fields for the address were two information texts with checkboxes. The first note, whose checkbox was not preconfigured, read:
I agree, that some sponsors and cooperation partners inform me by post or phone or by email / SMS about offers from their respective business area. I can determine this myself, otherwise the selection is made by the organizer. I can withdraw my consent at any time. More information here.
The second note, which was provided with a preset check mark, read:
I agree, that the web analysis service R. is used for me. As a result, that the competition organizer, die P. GmbH, sets cookies after registering for the competition, which P. an evaluation of my surf- and usage behavior on websites of advertising partners and thus interest-based advertising by R. enables. I can delete the cookies at any time. Read more here.
Participation in the competition was only possible, if at least the checkmark was placed in front of the first text.
The words in the first note “Sponsors and cooperation partners” and “here” the underlying electronic reference led to a list, the 57 Companies, Your Address, the business area to be advertised and the
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Type of communication used for advertising (E-Mail, Post or phone) and the underlined word after each company “Sign out” contained. The list was preceded by the following note:
By clicking on the link “Sign out” I decide, that the named partner / sponsor may not be given advertising consent. If I don't have one or if I haven't signed off enough partners / sponsors, chooses P. for me partners / sponsors at my own discretion (Maximum number: 30 Partners / sponsors).
When pressing the word in the second note “here” the following information was displayed:
With the cookies set with the name ceng_cache, ceng_etag, ceng_png and gcr are small files, which are assigned to your hard drive by the browser you are using and through which certain information flows, that make advertising more user-friendly and effective. The cookies contain a certain randomly generated number (ID), which is also assigned to your registration data. Then visit the website of one for R. registered advertising part- ners (whether there is a registration, please refer to the data protection declaration of the advertising partner), is automated due to an integrated iFrame from R. detected, that you (d.h. the user with the saved ID) visited the site, which product you were interested in and whether a contract was concluded.
Then the P. GmbH on the basis of the competition registration- given advertising consent to send you advertising emails, that take into account your interests shown on the website of the advertising partner. After revoking the advertising permit, you will of course no longer receive email advertising.
The information transmitted by the cookies is used exclusively for advertising, in which products of the advertising partner are presented. The information is collected separately for each advertising partner, saved and used. Under no circumstances will cross-partner user profiles be created. The individual advertising partners do not receive any personal data.
Unless you have any further interest in using the cookies, you can delete them at any time via your browser. Instructions can be found in the help function of your browser.
Cookies cannot run programs or transmit viruses.
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Of course you have the possibility, to withdraw this consent at any time. You can send the revocation in writing to P. GmbH [Address] richten. However, an email to our customer service is sufficient [E-Mail-Adresse].
The plaintiff argued, the declarations of consent requested by the defendant in telephone advertising and the setting of cookies did not meet the requirements of § 307 BGB in connection with § 7 Abs. 2 No.. 2 UWG and §§ 12 ff. TMG. A pre-judicial warning has been unsuccessful.
The plaintiff has – as far as relevant for the revision procedure – last requested,
I. to condemn the defendant under the threat of specified means of order, to refrain, subsequent provisions or provisions with the same content, whose acceptance is mandatory for participation in a competition, to be included in competition agreements with consumers, as well as the provisions in the execution of such contracts, closed after the 1. April 1977, to call:
1. ☐ I agree, that some sponsors and cooperation partners inform me by post or phone or by email / SMS about offers from their respective business area. I can determine this myself, otherwise the selection is made by the organizer. I can withdraw my consent at any time. More information here; (…)
3. subsequent determination with a preset checkbox:
☑ I agree, that the web analysis service R. is used for me. As a result, that the competition organizer, die P. GmbH, sets cookies after registering for the competition, which P. an evaluation of my surf- and usage- behavior on websites of advertising partners and thus interest-oriented advertising by R. enables; (…)
II. order the defendant, to the plaintiff 214 € plus interest of five percentage points above the respective base rate since 15. March 2014 to pay.
The district court approved the applications for I 1, I 3 and II upheld and the rest of the application was dismissed. The Be-
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filed an appeal, with which she continued to pursue her application for dismissal. The plaintiff has applied to the appellate court, reject the appeal with the proviso, that the – the complaint application I 1 compliant – first part of the tenor of the injunction to add “if this provision is used in conjunction with a list as in Appendix K 1 reproduced on the application” is added. The Court of Appeal has petition I 3 dismissed and the appeal was otherwise rejected with the stipulation requested by the plaintiff, taking it instead of an application “Written application” has formulated. With the appeal approved by the Court of Appeal, the plaintiff is pursuing his application I 3 and the defendant continues her request for full dismissal. The parties request each, dismiss the other party's appeal.
The Senate has asked the Court of Justice of the European Union to interpret Art. 5 Abs. 3 and Art. 2 BUCHST. f of Directive 2002/58 / EC of the European Parliament and of the Council of 12. July 2002 about the processing of personal data and the protection of privacy in electronic communication (Privacy policy for electronic communications, ABl. The 201 from 31. July 2002, S. 37) in which by Art. 2 No.. 5 Directive 2009/136 / EC of the European Parliament and of the Council of 25. November 2009 amending Directive 2002/22 / EC on universal service and user rights in electronic communications networks and services, Directive 2002/58 / EC on the processing of personal data and the protection of privacy in electronic communications and the regulation (EG) No.. 2006/2004 on cooperation in consumer protection (ABl. The 337 from 18. December 2009, S. 11) amended version in connection with Art. 2 BUCHST. h of Directive 95/46 / EC of the European Parliament and of the Council of 24. October 1995 to protect natural persons in the processing of personal data and for free data traffic (ABl. The 281
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from 23. November 1995, S. 31) as well as the interpretation of Art. 6 Abs. 1 BUCHST. a of the regulation (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. The 119/1 from 4. More 2016, S. 1) submitted the following questions for a preliminary ruling (Be-schluss vom 5. October 2017 – I ZR 7/16, Wheat 2018, 96 = WRP 2018, 87 – Cookie consent I):
1. a) If it is an effective consent within the meaning of Art. 5 Abs. 3 and Art. 2 BUCHST. f of Directive 2002/58 / EC as defined by Art. 2 No.. 5 Directive 2009/136 / EC as amended in conjunction with Art. 2 BUCHST. h of Directive 95/46 / EC, when storing information or accessing information, that are already stored in the user's device, is enabled by a preset checkbox, that the user must deselect to refuse their consent?
b) Does it make use of Art. 5 Abs. 3 and Art. 2 BUCHST. f of Directive 2002/58 / EC in conjunction with Art. 2 BUCHST. h the directive 95/46 / EG a difference, whether the stored or retrieved information is personal data?
c) Is below that in the question 1 a) mentioned circumstances, an effective consent within the meaning of Art. 6 Abs. 1 BUCHST. a of the regulation (I) 2016/679 ago?
2. What information does the service provider have within the scope of the. 5 Abs. 3 of the directive 2002/58 / EC to provide the user with clear and comprehensive information? This also includes the function period of the cookies and the question, whether third parties have access to the cookies?
The Court of Justice of the European Union answered these questions as follows (Judgment of 1. October 2019 – C-673/17, Wheat 2019, 1198 = WRP 2019, 1455 – Federal Association of Consumers / Planet49):
1. Art. 2 BUCHST. f and Art. 5 Abs. 3 of the directive 2002/58 / EG in the by the directive 2009/136 amended version in connection with Art. 2 BUCHST. h of Directive 95/46 / EC or. with Art. 4 No.. 11 and Art. 6 Abs. 1 BUCHST. a of the regulation (I) 2016/679 are to be interpreted there, that there is no effective consent within the meaning of these provisions, when storing information or accessing information, that are already stored in the end device of the user of a website, using cookies from a before-
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checkbox is allowed, that the user must deselect to refuse their consent.
2. Art. 2 BUCHST. f and Art. 5 Abs. 3 of Directive 2002/58 in the by the directive 2009/136 amended version in connection with Art. 2 BUCHST. h of the directive 95/46 or. with Art. 4 No.. 11 and Art. 6 Abs. 1 BUCHST. a of the regulation 2016/679 are not to be interpreted differently, depending on, whether the information stored or called up in the end device of the user of a website is personal data within the meaning of the directive 95/46 or. der Verordnung 2016/679 acts or not.
3. Art. 5 Abs. 3 of Directive 2002/58 in the by the directive 2009/136 the amended version is to be interpreted there, that information about the duration of function of the cookies and this, whether third parties can access the cookies, count to the information, which the service provider has to give to the user of a website.
Reasons:
A. The court accepted, the plaintiff can only with regard to the declaration of consent to telephone advertising, but do not require omission with regard to the declaration of consent to the use of cookies. To this end it has executed:
The application is regarding application I 1 permissible. In the reference to Annex K made in the appeal application 1 there was no change in lawsuit, but a clarification of the prohibition pursued by the application. The declaration of consent to telephone advertising is a general business condition, that are unreasonably disadvantageous for the consumer, because the declaration of consent for a justification of advertising calls according to § 7 Abs. 2 No.. 2 UWG not enough. The complaint I 3 however, be unfounded, because the declaration of consent to the use of cookies should not be contested either in terms of the default setting of a check mark or in terms of content. The defendant also owes the payment of the warning costs-
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Bowl (Proposal II), because the warning regarding application I 1 was justified.
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B. The directed against this judgment appeal by the Respondent does not succeed (dazu B I). The plaintiff's appeal, however, was successful (dazu B II).
I. The defendant's appeal is unsuccessful against the conviction according to motion I 1 und II.
1. The Court of Appeal has motion for action I 1 with reference to Appendix K 1 appropriately considered admissible.
a) The adoption of the Appeal Court, according to § 3 Abs. 1 Set 1 No.. 1 UKlaG complaint power, shows no legal error and is also not called into question by the defendant's revision.
b) The defendant's appeal is unsuccessful, about that in the appellate instance by supplementing it with reference to Appendix K 1 amended claim I 1 In the absence of the defendant's consent, the matter should not have been decided.
The decision, that there was no change in the complaint, ist nach § 268 ZPO not contestable. For the rest, the amendment to application I 1 to refer to Appendix K 1 no change of lawsuit within the meaning of § 263 ZPO dar. The plaintiff contested the complaint, the consumer does not recognize the importance of the consent given by him, because the possibility of deregistering individual companies from the 57 “Sponsors and cooperation partners” comprehensive list (Appendix K 1) is so complicated, that he would regularly leave the selection to the defendant. However, the plaintiff had a reference to Appendix K 1 initially not considered necessary in the application and only carried out on the advice of the court of appeal, that the wording of the application also covers constellations, in which the list contains only a few companies. The then
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Modification of the application only served for clarification, that the defendant does not simply use the contested declaration of consent with the injunction, but should only be prohibited in the specific form of injury, where the list in accordance with Appendix K 1 Use (vgl. BGH, Judgment of 25. June 2015 – I ZR 145/14, Wheat 2015, 1019 Rn. 12 = WRP 2015, 1102 – Mobile accounting service).
c) The defendant's appeal is unsuccessful, the application for I 1 the omission tenor is indefinite, because the system K 1 is not part of the judgment.
For the certainty of the judgment formula (§ 313 Abs. 1 No.. 4 Code of Civil Procedure) apply the principles for the certainty of the claim according to § 253 Abs. 2 No.. 2 ZPO accordingly (vgl. BGH, Judgment of 16. November 2006 I ZR 191/03, Wheat 2007, 607 Rn. 15 = WRP 2007, 775 – Telephone advertising for “Individual contracts”; Judgment of 15. March 2012 – I ZR 128/10, GRUR-RR 2012, 475 Rn. 16). The content of a judgment can primarily be found in the judgment formula. If the judgment formula is not sufficient for determining the content, are the facts and the reasons for the decision to interpret the judgment formula, if necessary also the party submissions, to use (vgl. BGH, Judgment of 14. February 2008 I ZR 135/05, Wheat 2008, 933 Rn. 13 = WRP 2008, 1227 – lubricant; Judgment of 24. July 2014 – I ZR 27/13, Wheat 2015, 269 Rn. 19 = WRP 2015, 353 – K-Theory). The verdict must be determined externally in a way, that it remains determinable after the announcement, Otherwise, uncertainties may arise after the decision has become final and, in particular, when it is enforced. In order to guarantee the determinability, the content of the judgment must therefore be specified in a uniform document (BGH, Judgment of 14. October 1999 – I ZR 117/97, References omitted 142, 388, 391 [juris Rn. 16 and 17] – Musi-cal-Gala).
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A deficiency in the judgment formula is harmless even then, if their meaning can be recognized sufficiently clearly from the content of the judicial files to be used for the interpretation (vgl. BGH, Judgment of 30. April 2009 I ZR 66/07, Wheat 2009, 1183 Rn. 6 = WRP 2009, 1501 – Clearance sale due to renovation; Judgment of 20. June 2013 – I ZR 55/12, Wheat 2013, 1235 Rn. 13 = WRP 2014, 75 – Residual value exchange II). This is the case in the event of a dispute. Neither for the parties to the litigation nor for the execution of the injunction in accordance with § 890 Abs. 1 Set 1 ZPO competent court of first instance may have doubts about it, that with the appendix K 1 only that of the application of 28. January 2006 attached list could be meant. As far as the appellate court has formulated in the tenor “as in Appendix K 1 reproduced with the application”, is it a § 319 Abs. 1 ZPO ex officio correctness to be corrected ex officio; was meant – as requested by the plaintiff and correctly reflected in the facts of the appeal judgment – evident “as in Appendix K 1 reproduced for Kla-writing”.
2. The appellate court also rightly has the defendant to refrain from action in accordance with the claim I modified in the appellate court 1 sentenced. The defendant is 1, 3 Abs. 1 No.. 1 UKlaG in connection with § 307 Abs. 1 BGB and § 7 Abs. 2 No.. 2 UWG obliged to refrain from doing so.
a) The court accepted, the objection declaration of consent to telephone advertising violates § 307 Abs. 1 BGB in connection with § 7 Abs. 2 No.. 2 UWG, because the selection process associated with the list demands a disproportionate effort from the user and is offered in the expectation, that he would agree to the selection of companies by the defendant. Such consent
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was not given in knowledge of the facts. This assessment stands up to legal review.
b) After § 307 Abs. 1 Set 1 BGB provisions in general terms and conditions are ineffective, if they unreasonably disadvantage the contracting party of the user contrary to the requirements of good faith. § 307 Abs. 2 No.. 1 BGB determines, that an inadequate disadvantage can be assumed in case of doubt, if a provision with essential basic ideas of the legal regulation, from which is deviated, is incompatible. In the event of a dispute, these requirements apply to § 7 Abs. 2 No.. 2 UWG before.
aa) The Court of Appeal has the contested declaration of consent as a general business condition provided by the defendant within the meaning of § 305 Abs. 1 Set 1 BGB viewed. This shows no legal error and is not attacked by the revision. The provisions of §§ 305 ff. BGB apply to the declarations of consent pre-formulated by the organizers of competitions (vgl. BGH, Judgment of 25. October 2012 I ZR 169/10, Wheat 2013, 531 Rn. 16 to 20 = WRP 2013, 767 – Consent to advertising calls II).
bb) The objection declaration of consent does not meet the requirements of § 7 Abs. 2 No.. 2 Fall 1 UWG and is therefore due to unreasonable disadvantage for consumers according to § 307 Abs. 1 BGB ineffective.
After § 7 Abs. 2 No.. 2 Fall 1 UWG always represents an unreasonable nuisance to advertisements with a telephone call to a consumer without his prior express consent. This regulation serves to implement Art. 13 Abs. 3 and 5 Set 1 of Directive 2002/58 / EC. The concept of “consent” must therefore be determined in accordance with the guidelines (vgl. BGH, Wheat 2013, 531 Rn. 23 – Consent to advertising calls II).
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(1) Art. 2 Set 2 BUCHST. f of Directive 2002/58 / EC refers to Art. 2 BUCHST. h of Directive 95/46 / EC. When considering this reference, please note, that Directive 95/46 / EC through Art. 94 Abs. 1 der Verordnung (I) 2016/679 with effect from 25. More 2018 has been lifted. Since then, according to Art. 94 Abs. 2 Set 1 der Verordnung (I) 2016/679 References to the repealed directive as references to the aforementioned regulation. For the definition of the concept of consent, therefore, is for the period from 25. More 2018 to the in Art. 4 No.. 11 der Verordnung (I) 2016/679 the proposed definition.
The claim made by the applicant, Injunctive relief based on the risk of repetition is only justified, if the contested act was both illegal at the time it was carried out and is illegal according to the legal situation at the time of the decision (st. Case law.; vgl. BGH, Judgment from 16. January 2020 – I ZR 74/16, Wheat 2020, 432 Rn. 11 = WRP 2020, 456 – Kulturchampignons II, mwN). The existence of the injunctive relief therefore presupposes, that the declaration contested in the event of a dispute neither meets the requirements of Art. 2 BUCHST. h of Directive 95/46 / EC or Art. 4 No.. 11 der Verordnung (I) 2016/679 Fulfills.
(2) Not Art. 2 BUCHST. h of Directive 95/46 / EC, consent is every expression of will, those without compulsion, for the specific case and with knowledge of the situation. After recital 17 Directive 2002/58 / EC can give consent in any suitable way, through which the user's wish is expressed in a specific statement, the factual and free decision; This also includes marking a field on an Internet website. A consent is given “aware of the facts” granted, if the consumer knows, that his declaration is an agreement and what it relates to. The consent is given “for the specific case”, when it becomes clear, the products or services which
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Companies recorded them specifically (vgl. BGH, Judgment of 17. July 2008 – I ZR 75/06, Wheat 2008, 923 Rn. 16 = WRP 2008, 1328 – Fax request in the car trade [to § 7 Abs. 2 No.. 3 UWG]; BGH, Wheat 2013, 531 Rn. 24 – Consent to advertising calls II; BGH, Judgment of 14. March 2017 – VI ZR 721/15, References omitted 214, 204 Rn. 24; Judgment of 1. February 2018 – III ZR 196/17, Wheat 2018, 545 Rn. 22 = WRP 2018, 442).
This is missing in the event of a dispute, because according to the appeals court's findings, which are not objectionable under revision law, the design of the declaration of consent challenged by the plaintiff is based on this, to confront the consumer with an elaborate process of deselecting partner companies from the list, to get him to do it, to refrain from exercising this choice and instead to let the defendant choose the advertising partner. The consumer does not know due to a lack of knowledge of the content of the list and without exercising the right to vote, the products or services of which entrepreneurs recorded the consent, there is no consent for the specific case.
The fact, that the consumer may well recognize the large number of advertising partners, how the defendant's appeal asserts, doesn't change anything, that due to the design of the selection process, the consumer will regularly have no knowledge of the specific content of the given consent.
(3) Not Art. 4 No.. 11 der Verordnung (I) 2016/679 consent is voluntary for the specific case, in an informed manner and unequivocally expressed will in the form of a declaration or other clear confirming action, with which the person concerned is to be understood, that they consent to the processing of their personal data. After recital 32 der Verordnung (I)
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2016/679 the consent should be given through a clear, affirmative action, with the voluntarily, for the specific case, is stated in an informed manner and unambiguously, that the data subject consents to the processing of their personal data. Consent is given for the specific case, if content, The purpose and scope of the declaration are sufficiently specific (vgl. BeckOK.DatenschutzR / Schild, 31. Edition [Stand 1. February 2020], Art. 4 DS-GVO Rn. 125; Buchner / Kühling in Kühling / Buchner, DS-GVO BDSG, 2. Ed, Art. 4 DS-GVO Rn. 8). The matter is therefore a change in the law compared to the one under Art. 2 BUCHST. h Directive 95/46 / EC does not meet the criteria for the consent to be given for the specific case and in the knowledge of the facts.
The declaration objected to in the event of a dispute also does not meet the requirements of Art. 4 No.. 11 der Verordnung (I) 2016/679, because according to the findings made by the court of appeal there is a lack of sufficiently concrete consent.
(4) The defendant's appeal is unsuccessful, the consent text and the text of the list that can be reached by means of an electronic reference are to be regarded as a unit, because the user familiar with the peculiarities of the Internet knows, that information could be spread across multiple pages, which he can easily find with a simple click of the mouse. The defendant's revision hereby replaces her own assessment of the facts instead of the judicial assessment, without showing a legal error. The court of appeal has ruled in a manner that is harmless under revision law, in the case of an Internet competition of the present type, the effort associated with the contested design for the selection of advertising partners for the consumer is disproportionate to the intended participation in the game for time reasons and is therefore to be expected, that consumption-
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I would agree with the selection by the defendant. For this reason, the objection to the revision remains unsuccessful, the list contains a clear description of the advertising partners and their business area.
(5) The defendant's appeal does not get through with her objection, a general business condition cannot be regarded as ineffective solely because of its length. The appeal court did not consider the contested declaration of consent to be ineffective solely because of the length of the sponsor list linked to it, but because of it, because the design of the consent taking into account its purpose – participation in a competition on the Internet – appears on it, to prevent the consumer from gaining knowledge and to induce him to do so, to transfer the defendant's right to vote.
3. The Court of Appeal also rightly considered the claim II, which is aimed at replacing the flat-rate warning fee, as justified, because the warning with a view to those with the application I 1 offended act within the meaning of § 12 Abs. 1 Set 1 UWG was entitled (vgl. BGH, Judgment of 10. December 2009 – I ZR 149/07, Wheat 2010, 744 Rn. 51 = WRP 2010, 1023 – Special newsletter).
II. The plaintiff's revision, with which the latter opposes the dismissal of the application I 3 turns, is successful.
1. The Court of Appeal has motion for action I 3 considered to be not justified and executed for this, the declaration of consent to the use of Coo-kies was not objectionable, either in view of the setting of a tick or in terms of content. The user recognize, that he can remove the preset check mark. The declaration of consent is sufficiently clear in terms of printing technology. In terms of content, they provide clear information about the way in which cookies are used. The identity of third parties, that on the means
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of the information collected by cookies, do not have to be revealed. This assessment does not stand up to legal review.
2. Contrary to the opinion of the Court of Appeal, the plaintiff is entitled to the application I 3 Claim for injunctive relief according to § 1 U-KlaG in connection with § 307 Abs. 1 and 2 No.. 1 BGB too.
The electronically declarable consent of the user provided by the defendant in the form of a general business condition, which allows the information stored on his end device to be called up using cookies by means of a preset checkbox, poses – as required for an injunctive relief based on the risk of repetition (on this already marginal. 30) – both in accordance with the law applicable at the time of the contested act and the law applicable at the time of the decision constitute an unreasonable disadvantage.
a) Against the acceptance of the court of appeal, the attacked declaration of consent by means of a preset checkbox is a general business condition within the meaning of § 305 Abs. 1 BGB, The revision rightly raised no objections.
b) Obtaining consent by means of a preset checkbox was after 24. More 2018 applicable legal situation – that is, before the regulation applies (I) 2016/679 – im Sinne von § 307 Abs. 2 No.. 1 BGB with essential basic ideas of § 15 Abs. 3 Set 1 TMG not compatible.
aa) After § 15 Abs. 3 Set 1 TMG may be the service provider for advertising purposes, Create market research or use profiles with the use of pseudonyms for the needs-based design of the tele-media, provided the user does not object to this after being informed about his right to object.
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The defendant's use of cookies serves as a service provider, like § 15 Abs. 3 Set 1 TMG required, the creation of user profiles for the purpose of advertising, by recording the behavior of the user on the Internet and using it to send advertising tailored to it. The randomly generated number saved in the cookies in the event of a dispute (ID), which is assigned to the user's registration data, is a pseudonym in the sense of § 15 Abs. 3 TMG. After § 3 Abs. 6a BDSG in the until 24. More 2018 In the current version, pseudonymization is the replacement of the name and other identifying features with an identifier for the purpose, to exclude or significantly complicate the determination of the person concerned. By assigning a randomly generated number to the registration data of the user, its identification by third parties – For example, through the operator's website, which is referred to as the defendant's advertising partner – excluded or significantly more difficult.
bb) § 15 Abs. 3 Set 1 With regard to Art. 5 Abs. 3 Set 1 of Directive 2002/58 / EC in the by Art. 2 No.. 5 of the amended version of Directive 2009/136 / EC should be interpreted in accordance with the directive, that the consent of the user is required for the use of cookies to create user profiles for advertising or market research purposes.
(1) According to the original version of Art. 5 Abs. 3 According to Directive 2002/58 / EC, the service provider not only had to provide the user with clear and comprehensive information about the purpose of processing in the event of the storage of information on the user's terminal device or the access to information stored there, but also to point out the right, to refuse processing. After the revision of Art. 5 Abs. 3 Directive 2002/58 / EC through Directive 2009/136 / EC is guaranteed by the member states, that storing information or accessing it
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information, that are already stored in the user's device, is only permitted, if the user in question is based on clear and comprehensive information, which he according to Directive 95/46 / EC – amongst other things – about the purposes of processing, has given his consent. The consent requirement is for storage or access in accordance with Art. 5 Abs. 3 Set 2 not contrary to Directive 2002/58 / EC, if the sole purpose is to carry out message transmission over an electronic communication network or if storage or access is required, in order to provide the user with the information society service he expressly desires.
Die in Art. 5 Abs. 3 Measures of storing or retrieving information stored on the user's terminal device in accordance with Directive 2002/58 / EC are typically carried out using cookies. Cookies are text files, which the provider of a website stores on the user's computer and can call up again when the website is called up again, to facilitate navigation on the Internet or transactions or to retrieve information about user behavior (vgl. BGH, Wheat 2018, 96 Rn. 15 – Cookie consent I). In the event of a dispute, storage or retrieval of the information is not within the meaning of Art. 5 Abs. 3 Set 2 the directive 2002/58 / EG is technically necessary, but they are used for advertising, so that the exception to the consent requirement does not exist.
(2) Not Art. 2 BUCHST. h of Directive 95/46 / EC, on Art. 2 BUCHST. f of Directive 2002/58 / EC for the definition (also) who according to Art. 5 Abs. 3 Set 1 of this policy, consent is to be understood 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.
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The Court of Justice of the European Union has ruled on submission by the Senate, dass Art. 2 BUCHST. f and Art. 5 Abs. 3 of Directive 2002/58 / EC in conjunction with Art. 2 BUCHST. h of Directive 95/46 / EC are to be interpreted there, that there is no effective consent within the meaning of these provisions, when storing information or accessing information, that are already stored in the end device of the user of a website, is enabled by means of cookies through a preset checkbox, that the user must deselect to refuse their consent (ECJ, Wheat 2019, 1198 Rn. 46 to 59 – Federal consumer association / Planet49). On the question, whether the information is personal data, it doesn't matter in this context (ECJ, Wheat 2019, 1198 Rn. 68 to 71 – Federal consumer association / Planet49).
(3) After that is § 15 Abs. 3 Set 1 To interpret TMG in accordance with guidelines, that the service provider may not use cookies to create user profiles for advertising or market research purposes, if the user's consent is obtained using a preset checkbox, that the user must deselect to refuse their consent.
The national courts are due to the implementation requirement according to Art. 288 TFEU ​​and the principle of loyalty to the Union in accordance with Art. 4 Abs. 3 EUV held, the interpretation of national law with full use of the discretion, which national law grants them, as far as possible based on the wording and purpose of the directive, to achieve the goal of the directive. This principle of interpretation in accordance with the directive requires more from the national courts than the mere interpretation within the wording of the law, but only finds its limit in the area, in which a judicial legal training according to national methods un-
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is permissible. The principle of directive-compliant interpretation therefore also demands, national law, where this is necessary and possible, Continuing training in line with guidelines in the form of teleological reduction (vgl. BGH, Judgment of 26. No-vember 2008 – VIII ZR 200/05, References omitted 179, 27 Rn. 19 ff.; Decision of 16. April 2015 – I ZR 130/13, Wheat 2015, 705 Rn. 26 = WRP 2015, 863 – Pain-smoke-extract capsules; Judgment of 21. October 2015 – I ZR 51/12, Wheat 2016, 497 Rn. 35 = WRP 2016, 707 Davidoff Hot Water II).
The directive-compliant interpretation of § 15 Abs. 3 Set 1 TMG does not stand in the way, that the German legislature has not yet carried out an implementation act. Because it can be assumed, that the legislator considered the existing legal situation in Germany to be in conformity with the guidelines (vgl. Moos, K&R 2012, 635 f.; Rauer / Ettig, ZD 2016, 423, 424; Schmidt/Babilon, K&R 2016, 86, 89; Working Document of the Communications Committee of the European Commission dated 4. October 2011, COCOM11-20, S. 3 ff.). Legislative proposals of the Federal Council and the SPD parliamentary group in the German Bundestag, which involved the introduction of the reservation of consent for cookies (vgl. BT-pressure. 17/6756 and 17/8454), have not been realized. The Federal Government was obviously of the opinion, there is no need for change; the EU Commission has not objected to this (vgl. Rauer / Ettig, ZD 2015, 255, 256).
With the wording of § 15 Abs. 3 Set 1 A corresponding, directive-compliant interpretation is still compatible with TMG. In the absence of one (effective) Consent can be with that in mind, that the legislature with § 15 Abs. 3 Set 1 TMG saw the EU law consent requirement implemented, the contradiction contrary to this regulation to the admissibility of the creation of usage profiles (vgl. Schmitz in Spindler / Schmitz, Telemediengesetz, 2. Ed, § 15 Rn. 96; aA Hanloser, ZD 2019, 264, 266; Moos, K&R 2012, 635, 637 and K&R 2015, 220, 222).
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(4) In the event of a dispute, the consent given by the user in the contested general terms and conditions by means of a pre-set checkbox is given with an essential basic idea of ​​§ 15 Abs. 3 TMG not compatible.
c) This legal situation has since 25. More 2018, the first day of validity of the regulation (I) 2016/679, nothing changed.
aa) Die Verordnung (I) 2016/679 lets the continuation of § 15 Abs. 3 Set 1 TMG als Art. 5 Abs. 3 Set 1 the national regulation implementing Directive 2002/58 / EC is not affected.
(1) Art. 95 der Verordnung (I) 2016/679 intended for the relationship to Directive 2002/58 / EC, that the Regulation does not impose any additional obligations on natural or legal persons in relation to processing in connection with the provision of publicly available electronic communications services in public communications networks in the Union, insofar as they are subject to special obligations laid down in the directive, pursuing the same goal. Art. 95 der Verordnung (I) 2016/679 regulates the delimitation of the areas of application of both legal acts in the event of a collision, which is only given, if both acts contain competing obligations, pursuing the same goal. In this case, according to Art. 95 der Verordnung (I) 2016/679 the regulations of the directive (vgl. Karg in Simi-tis / Hornung / Spiecker gen. Dohm, Privacy law, Art. 95 DSGVO Rn. 1, 17; Klabunde / Selmayr in Ehmann / Selmayr, DSGVO, 2. Ed, Art. 95 Rn. 16). So far, however, Directive 2002/58 / EC on the scope of the regulation (I) 2016/679 goes out, there is no specialty relationship due to lack of regulatory competition and remains so (also) when applying the directive (vgl. Sydow, DSGVO, 2. Ed, Art. 95 Rn. 5; Gola / Piltz, DSGVO, 2. Ed, Art. 95 Rn. 11).
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(2) After that, it remains subject to the regulation (I) 2016/679 in the applicability of Art. 5 Abs. 3 Directive 2002/58 / EC and the § implementing this regulation 15 Abs. 3 Set 1 TMG.
Art. 5 Abs. 3 of Directive 2002/58 / EC does not affect the subject matter of the regulation (I) 2016/679, according to their art. 1 Abs. 1 the processing of personal data, but the storage of or access to information, that are stored in the user's device. This difference in the area of ​​application is due to the different protective purposes of the regulations concerned: During the regulation (I) 2016/679 according to their type. 1 Abs. 2 and their recitals 1 and 2 the fundamental rights and freedoms of natural persons and in particular those in Art. 8 Abs. 1 the EU Charter of Fundamental Rights protects the right to protection of personal data, serves Art. 5 Abs. 3 of Directive 2002/58 / EC, as evidenced by their recitals 24 and 25 and the recitals 65 and 66 of Directive 2009/136 / EC amending this directive, that through Art. 8 Abs. 1 the European Convention on Human Rights and (meanwhile) through Art. 7 the EU Charter of Fundamental Rights guarantees protection of user privacy. Art. 5 Abs. 3 Directive 2002/58 / EC is designed to protect users from any interference with their privacy, regardless, whether personal data or other data are affected (vgl. ECJ, Wheat 2019, 1198 Rn. 68 f. – Federal Association of Consumers / Planet49). The regulation of Art. 5 Abs. 3 Directive 2002/58 / EC on the scope of the regulation (I) 2016/679 out.
If the applicability of Art. 5 Abs. 3 of Directive 2002/58 / EC through the application of the regulation (I) 2016/679 not touched, the applicability of the § implementing this regulation remains 15 Abs. 3 Set 1 TMG. An application of the guideline also extends to national law implementing this guideline (vgl. [zu Art. 95 DSGVO] Schmitz in
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Spindler / Schmitz op. to § 11 up to § 15a marg. 11, 13 and § 13 Rn. 22 f.; Gola / Piltz, DSGVO, 2. Ed, Art. 95 Rn. 15).
bb) As far as Art. 2 BUCHST. f of Directive 2002/58 / EC for the definition of consent to Art. 2 BUCHST. h of Directive 95/46 / EC, to be noted, that following the repeal of Directive 95/46 / EC by the Regulation (I) 2016/679 since then 25. More 2018 for the definition of the concept of consent to the in Art. 4 No.. 11 der Verordnung (I) 2016/679 provided definition is to be turned off (in addition marg. 29).
However, this did not result in a change of law. The Court of Justice of the European Union, on submission by the Senate, has also considered Art. 4 No.. 11 and Art. 6 Abs. 1 BUCHST. a of the regulation (I) 2016/679 decided, that there is no effective consent within the meaning of these provisions, when storing information or accessing information, that are already stored in the end device of the user of a website, is enabled by means of cookies through a preset checkbox, that the user must deselect to refuse their consent (ECJ, Wheat 2019, 1198 Rn. 60 to 63 – Federal consumer association / Planet49).
3. The injunction is therefore I 3 justified, without having a decisive impact on the scope of the information provided by the defendant about the way in which cookies are used (see cf.. ECJ, Wheat 2019, 1198 Rn. 72 to 81 – Federal consumer association / Planet49). The question referred to the scope of the information about the way in which cookies are used 2 the Senate was just in case, that according to the answers given by the Court to the questions referred 1 a to c of the Senate on the existence of effective consent to the
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Storage or access to information by using cookies would have been assumed.
C. The defendant's revision must then be rejected with the stipulation, that the addition mentioned in the second paragraph of the operative part of the judgment under appeal reads “(…) if this provision is used in conjunction with a list as in Appendix K 1 reproduced on the application”. The challenged judgment is to be overturned in the cost point and to the extent that the plaintiff is revised, than therein regarding the motion for injunctive relief I 3 to the detriment of the plaintiff. To the extent of the cancellation, the regional judge's judgment must be restored. The decision on costs is based on § 92 Abs. 1 Set 1, § 97 Abs. 1 Code of Civil Procedure.