StWL Städtische Werke Lauf a.d. Pegnitz GmbH v eprimo GmbH.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:954
• Date: 25 November 2021
• Docket Number: C-102/20
• Celex Number: 62020CJ0102
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

25 November 2021 (*)

(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)

In Case C‑102/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 30 January 2020, received at the Court on 26 February 2020, in the proceedings

StWL Städtische Werke Lauf a.d. Pegnitz GmbH

v

eprimo GmbH,

intervening party:

Interactive Media CCSP GmbH,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Second Chamber, acting as President of the Third Chamber, J. Passer, F. Biltgen, L.S. Rossi (Rapporteur) and N. Wahl, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– eprimo GmbH, by R. Hall, Rechtsanwalt,

– Interactive Media CCSP GmbH, by D. Frey and M. Rudolph, Rechtsanwälte,

– the Portuguese Government, by L. Inez Fernandes, A. Guerra and P. Barros da Costa, acting as Agents,

– the European Commission, 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,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(h) and 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) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11) (‘Directive 2002/58’), and 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’) (OJ 2005 L 149, p. 22).

2 The request has been made in two sets of proceedings between StWL Städtische Werke Lauf a.d. Pegnitz GmbH (‘StWL’) and eprimo GmbH, which are two companies that supply electricity to final customers, concerning an advertising activity by Interactive Media CCSP GmbH, at eprimo’s request, consisting in posting advertising messages in the inboxes of users of the free email service ‘T-Online’.

Legal context

EU law

3 Recitals 4 and 40 of Directive 2002/58 read as follows:

‘(4) Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector [(OJ 1998 L 24, p. 1)] translated the principles set out in Directive 95/46/EC [of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)] into specific rules for the telecommunications sector. Directive 97/66/EC has to be adapted to developments in the markets and technologies for electronic communications services in order to provide an equal level of protection of personal data and privacy for users of publicly available electronic communications services, regardless of the technologies used. That Directive should therefore be repealed and replaced by this Directive.

…

(40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and emails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, [European Union-wide] rules for businesses and users.’

4 Article 1(1) of that directive provides:

‘This Directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the [European Union].’

5 Under Article 2(d), (f) and (h), of the directive, entitled ‘Definitions’:

‘The following definitions shall also apply:

(d) “communication” means any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service. This does not include any information conveyed as part of a broadcasting service to the public over an electronic communications network except to the extent that the information can be related to the identifiable subscriber or user receiving the information;

…

(f) “consent” by a user or subscriber corresponds to the data subject’s consent in Directive 95/46/EC

…

(h) “electronic mail” means any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.’

6 Article 13(1) of the same directive, entitled ‘Unsolicited communications’, provides:

‘The use of automated calling and communication systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may be allowed only in respect of subscribers or users who have given their prior consent.’

7 Recital 67 of Directive 2009/136 reads:

‘Safeguards provided for subscribers against intrusion into their privacy by unsolicited communications for direct marketing purposes by means of electronic mail should also be applicable to SMS, [multi-media messages (MMS)] and other kinds of similar applications.’

8 Article 2(h) of Directive 95/46/EC provides:

‘For the purposes of this Directive:

…

(h) “the data subject’s consent” shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.’

9 Article 94(2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1, and corrigendum OJ 2018 L 127, p. 2), entitled ‘Repeal of Directive 95/46/EC’ provides:

‘References to the repealed Directive shall be construed as references to this Regulation. …’

10 Article 4(11) of that regulation is worded as follows:

‘For the purposes of this Regulation:

…

(11) “consent” of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her’.

11 Recital 17 of Directive 2005/29 is worded as follows:

‘(17) It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the full list of all such practices. These are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9. The list may only be modified by revision of the Directive.’

12 Article 5 of the directive provides:

‘1. Unfair commercial practices shall be prohibited.

2. A commercial practice shall be unfair if:

(a) it is contrary to the requirements of professional diligence,

and

(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

…

4. In particular, commercial practices shall be unfair which:

(a) are misleading as set out in Articles 6 and 7,

or

(b) are aggressive as set out in Articles 8 and 9.

5. Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same single list shall apply in all Member States and may only be modified by revision of this Directive.’

13 Article 8 of that directive states:

‘A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby...