31.1.2022

Official Journal of the European Union

C 51/7

(Case C-102/20)

(Reference for a preliminary ruling - Directive 2002/58/EC - Processing of personal data and the protection of privacy in the electronic communications sector - Article 2(h) - Concept of ‘electronic mail’ - Article 13(1) - Concept of ‘use of … electronic mail for the purposes of direct marketing’ - Directive 2005/29/EC - Unfair commercial practices - Annex I, point 26 - Concept of ‘persistent and unwanted solicitations by email’ - Advertising messages - Inbox advertising)

(2022/C 51/08)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: StWL Städtische Werke Lauf a.d. Pegnitz GmbH

Defendant: eprimo GmbH

intervening party: Interactive Media CCSP GmbH

Operative part of the judgment

1.Article 13(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that the display, in the inbox of an electronic mail service user, of advertising messages in a form similar to that of real emails, and placed in the same position as those emails, without the fact that recipients are randomly determined or an assessment of the level of intensity and burden imposed on that user being relevant in that regard, constitutes ‘use of … electronic mail for the purposes of direct marketing’, which is permitted only on the condition that the user was clearly and specifically informed of the distribution methods of such advertising, including within the list of private emails received, and the user indicated specific and fully informed consent to receive such messages;

2.Annex I, point 26, to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices 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 (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that an activity consisting of the display in the inbox of an email service user of advertising messages in a form similar to that of real emails, and placed in the same position as those emails, falls within the concept of ‘persistent and unwanted solicitations’ of users of email services, within the meaning of that provision, if the display of those advertising messages is, first, sufficiently frequent and regular to be classified as ‘persistent solicitations’ and, second, may be classified as ‘unwanted solicitations’ in the absence of consent having been given by that user prior to that display.

(1) OJ C 209, 22.6.2020.