Opinion of the Advocate General — ECLI:EU:C:2021:518
Date: 2021-06-24
Language of the case: German
Subject matter: Consumer protection;Telecommunications;Data protection
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
26 February 2020 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
30 January 2020 
Applicant and appellant on a point of law: 
StWL Städtische Werke Lauf a.d. Pegnitz GmbH 
Defendant and respondent on a point of law: 
eprimo GmbH 
Intervener in support of the defendant: 
Interactive Media CCSP GmbH 
  
Subject matter of the main proceedings 
Unfair competition; injunction prohibiting anticompetitive advertising 
Subject matter and legal basis of the reference 
Interpretation of EU law; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Does the concept of ‘sending’ within the meaning of Article 2(h) of 
Directive 2002/58/EC cover a situation in which a message is not 
transmitted by a user of an electronic communications service, via a service 
provider, to the electronic ‘address’ of a second user, but, as a consequence 
EN 
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of the opening of the password-protected web page of an email account, is 
automatically displayed by ad servers in certain areas designated for that 
purpose in the email inbox of a randomly selected user (inbox advertising)? 
2. Does the collection of a message within the meaning of Article 2(h) of 
Directive 2002/58/EC presuppose that, after becoming aware of the 
existence of a message, the recipient triggers the programmatically 
prescribed transmission of the message data by making an intentional 
collection request, or is it sufficient for the appearance of a message in an 
email account inbox to be triggered by the user opening the password-
protected web page of his e-mail account? 
3. Does a message constitute electronic mail within the meaning of 
Article 13(1) of Directive 2002/58/EC even where it is not sent to an 
individual recipient already specifically identified prior to transmission but 
is displayed in the inbox of a randomly selected user? 
4. Is electronic mail used for the purposes of direct marketing within the 
meaning of Article 13(1) of Directive 2002/58/EC only where the user is 
found to be the subject of a burden that is greater than a nuisance? 
5. Does individual advertising meet the conditions governing the presence of 
‘solicitation’, for the purposes of the first sentence of point 26 of Annex I to 
Directive 2005/29/EC, only where a customer is contacted via a medium 
traditionally used for individual communication between a sender and a 
recipient, or is it sufficient if — as with the advertisement at issue in the case 
in point — an individual connection is established by the fact that the 
advertisement is displayed in the inbox of a private email account, and thus 
in an area in which the customer expects to find messages addressed to him 
personally? 
Provisions of EU law cited 
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); recitals 1, 12, 26, 27 and 40; 
Article 1(1); Article 2(h); the first sentence of Article 2(d); Article 6(1) and 
Article 13(1). 
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); first sentence 
of point 26 of Annex I. 
STWL STÄDTISCHE WERKE LAUF A.D. PEGNITZ 
 
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Provisions of national law cited 
Gesetz gegen den unlauteren Wettbewerb (Law to combat unfair competition) 
(‘the UWG’); Paragraph 3; Paragraph 7(1) and (2), points 1, 2 and 3; 
Paragraph 8(1) and (2). 
Brief summary of the facts and procedure 
1 The parties supply electricity to final customers. The intervener acting in support 
of the defendant is an advertising agency. 
2 The defendant commissioned the intervener to insert pop-up advertisements in the 
electronic mailboxes of users of the T-Online free email service. It did so as 
follows: on 15 January 2017, pop-up advertising was included with the e-mails 
received in that part of the private mailbox of a T-Online email service user in 
which incoming emails are displayed in list form (‘the inbox’). It contained the 
following text: ‘eprimo Mehr Sparen: Günstig Strom und Gas. Jetzt top eprimo-
Preise mit attraktivem Bonus sichern! Mehr erfahren auf eprimo.de’ (eprimo save 
more: cheap electricity and gas. Get the best eprimo prices with an attractive 
bonus! More information at eprimo.de). Similar pop-ups had previously appeared 
in the user’s inbox on 12 December 2016 and 13 January 2017. 
3 Such advertising is displayed in specific advertising spaces in the inbox forming 
part of the mailbox of the free email service provided by Telekom Deutschland 
GmbH. It is called a ‘T-Online.de Mail Ad’ and was available for purchase by that 
service provider’s advertising customers. An ad server’s JavaScript code (tag) was 
embedded in the appropriate place in the inbox on the web page visited by the 
user of such a free email mailbox. Thus, when the website was opened, the ad 
server was sent a request (an ad request) to display an advertising banner from its 
inventory. The ad server then sent the corresponding parameters to the user’s 
internet browser, causing a randomly selected advertising banner to pop up in the 
user’s inbox. If the user clicked on the pop-up advertisement, his input was first 
conveyed to the ad server, which recorded the click and redirected the browser to 
the advertiser’s page. The advertisement displayed in the inbox contained the 
word ‘Anzeige’ (advertisement) and could be removed from the inbox by clicking 
on the cross symbol ‘x’ located alongside it. Unlike the emails displayed in the 
user’s inbox, the advertisement appeared against a grey background and did not 
indicate either a date or a sender. Moreover, it could not be archived, replied to or 
forwarded by using the email processing options supplied by the email service 
provider. Nor was it included in the number of the user’s unread emails indicated 
by the service and did not take up any storage space in the user’s inbox. 
4 The applicant claims that that advertising is anticompetitive in that it constitutes 
an unacceptable nuisance and is misleading.  
5 The Landgericht (Regional Court, Germany) ordered the defendant to refrain, in 
the course of trade, from engaging in advertising such as that described above via 
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the ‘T-online.de’ email account for the purposes of competition in connection with 
the sale of electricity to final consumers. 
6 On appeal by the defendant, the appeal court dismissed the action on the ground 
that the contested placement of advertising in the inbox of private email mailboxes 
did not constitute an unlawful commercial practice under competition law. 
7 By its appeal on a point of law, which the appeal court granted it leave to bring 
and which the defendant claims should be dismissed, the applicant seeks to have 
the judgment of the Landgericht (Regional Court) reinstated. 
Brief summary of the grounds for referral 
8 The success of the appeal on a point of law depends on whether the applicant has 
a right, as it claims, to obtain a prohibitory injunction. Under the first sentence of 
Paragraph 8(1) of the UWG, the existence of that right presupposes that the 
defendant or, in accordance with Paragraph 8(2) of the UWG, the intervener 
commissioned to carry out the advertising at issue has engaged in an unlawful 
commercial practice within the meaning of Paragraphs 3 or 7 of the UWG. The 
practice of which the defendant is accused may be unlawful under Paragraph 7(2), 
point 3, of the UWG. It may also be unlawful under Paragraph 7(2), point 1, of the 
UWG. 
9 Whether those heads of claim are well founded depends on the interpretation that 
is to be given to Paragraph 7(2), point 3, of the UWG in the light of the provisions 
of Directive 2002/58. This raises questions, requiring answers from the Court, on 
the interpretation to be given to Article 2(h) and Article 13(1) of Directive 
2002/58. 
10 In accordance with the first sentence of Paragraph 7(1) of the UWG, a commercial 
practice is unlawful where it constitutes an unacceptable nuisance to a market 
participant. Under Paragraph 7(2), point 3, of the UWG, unacceptable nuisance 
must always be assumed to be present in the case of, inter alia, advertising using 
electronic mail without the express prior consent of the addressee. The provision 
in Paragraph 7(2), point 3, of the UWG is consistent with point 26 of Annex I to 
Directive 2005/29 and transposes Article 13(1) of Directive 2002/58 into German 
law. It must therefore be interpreted consistently with EU law, in the light of 
Article 13(1) of Directive 2002/58. 
11 Under Article 13(1) of Directive 2002/58, the use of, inter alia, electronic mail for 
the purposes of direct marketing may be allowed only in respect of subscribers or 
users who have given their prior consent. In accordance with Article 2(h) of 
Directive 2002/58, ‘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. It is doubtful whether those conditions are satisfied in the circumstances 
of the main proceedings. 
STWL STÄDTISCHE WERKE LAUF A.D. PEGNITZ 
 
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12 It is open to question first of all whether the advertising initiated by the defendant 
or, in accordance with Article 8(2) of the UWG, by the intervener commissioned 
by the defendant, which appears in specific advertising spaces in the inboxes 
forming part of the mailboxes of users of a free email service, must be regarded as 
electronic mail within the meaning of Article 2(h) of Directive 2002/58. 
13 The advertisement at issue is a text message [‘Textnachricht’] within the meaning 
of Article 2(h) of Directive 2002/58. Under the first sentence of Article 2 (d) of 
Directive 2002/58, ‘communication’ [‘Nachricht’] means any information 
exchanged or conveyed between a finite number of parties by means of a publicly 
available electronic communications service. Those conditions are satisfied. The 
defendant’s advertisement contains information in text form which advertises 
services offered by the defendant. That information was conveyed between a finite 
number of parties. The procedure by which it was conveyed to the user of the 
email account was as follows: the user entered his log-in details in order to open 
the web page of his email account and thus caused the message to be sent by the 
ad server operator in real time to the inbox of the email account page, where it 
was displayed to the user of that email account. In addition, the advertising 
information was conveyed by means of a publicly available electronic 
communications service. The advertisement was triggered by the opening of the 
user’s email account, which is accessible on the internet, and was reproduced in 
the inbox provided on the web page for the purpose of displaying incoming 
emails. The advertisement was therefore, like the emails, conveyed in electronic 
form over the internet and thus via a publicly available medium. An email service 
accessible to users over the internet is an electronic communications service. 
The first question referred for a preliminary ruling 
14 The first question seeks to determine whether the inbox advertising at issue was 
also ‘sent’ within the meaning of Article 2(h) of Directive 2002/58/EC. 
15 The appeal court found that it is clear from the concept of ‘sending’, read in 
conjunction with the terms ‘mail’ and ‘communications network’ also used in 
Article 2(h) of Directive 2002/58/EC, that a message constitutes ‘electronic mail’ 
only in the case where it is sent from one user to another via a service provider 
(such as an email provider) which carries out the electronic transfer to the second 
user’s electronic ‘address’ (such as an email address); in the dispute in the main 
proceedings, messages are not addressed to specific customers because the 
advertisement appears in a specifically defined space on a web page only by dint 
of an ad server acting in response to predefined ad tags/ad slots embedded in the 
web page. 
16 In support of that view, which is based on the characteristics of a traditional email, 
it must be acknowledged that, when Directive 2002/58 was adopted, the EU 
legislature, too, is likely to have regarded email, along with SMS messages, which 
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are expressly mentioned in recital 40 of Directive 2002/58, as a classical form of 
electronic mail. 
17 If Article 2(h) of Directive 2002/58/EC is interpreted by reference to the 
aforementioned requirements, which have been held to be sound by the appeal 
court and are based on the characteristics of a traditional email, no message has 
been ‘sent’ in the present case and the contested inbox advertising does not 
therefore constitute electronic mail. The inbox advertising is not transmitted by a 
user of an electronic communications service to the electronic ‘address’ (such as 
an email address) of a second user selected by that first user, via a service provider 
(such as an email provider), but, as a consequence of the opening of an email 
account, is displayed by ad servers in specific spaces designated for that purpose 
in the inbox of a randomly selected user. 
18 The interpretation of the characteristic ‘sent’ adopted by the appeal court, which is 
based on the characteristics of a traditional email, could be called into question by 
the protective purpose of Article 13(1) of Directive 2002/58. That provision, 
which employs the concept of electronic mail as defined in Article 2(h) of 
Directive 2002/58/EC and regulates the use of electronic mail, seeks to protect 
users against intrusion upon their privacy by unsolicited communications for the 
purposes of direct marketing (see recital 40 of Directive 2002/58). There is 
nothing to indicate that, in the light of the rapid pace at which technology could be 
expected to develop, the legislature intended to prescribe a static definition of 
electronic mail as being that attaching to the ‘classical’ forms of email, SMS or 
MMS messages, known at the time when the directive entered into force. It is 
more likely that, in the interests of protecting users’ privacy, it opted for a 
dynamic and technically neutral term that is capable, for example, of also 
including the kind of electronic messaging in evidence in the context of social 
networks, which has only recently become relevant. Since the privacy of users of 
electronic means of communication may be infringed not only by unsolicited 
communications sent via classical forms of individual electronic communication 
such as email, SMS or MMS messages, but also by new forms of mass electronic 
communication, it seems appropriate to interpret the concept of ‘sending’ not, by 
reference to traditional forms of electronic communication, as a transmission from 
one particular user to another previously designated user, but, functionally, as a 
mode of a distribution. 
19 On the basis of that functional interpretation of the concept in question, arrived at 
by reference to the protective objective pursued by Article 13(1) of Directive 
2002/58, the inbox advertising at issue in the main proceedings was probably 
‘sent’ within the meaning of Article 2(h) of Directive 2002/58/EC. That 
proposition is also supported by recital 40 of Directive 2002/58. According to that 
recital, users of public electronic communications networks should be protected 
against intrusion of their privacy by unsolicited communications for the purposes 
of direct marketing, since those forms of unsolicited advertising messages are 
relatively easy and cheap to send. Those criteria are met by the inbox advertising 
at issue. 
STWL STÄDTISCHE WERKE LAUF A.D. PEGNITZ 
 
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The second question referred for a preliminary ruling 
20 The second question seeks to determine which requirements are to be attached to 
the condition, laid down in Article 2(h) of Directive 2002/58/EC, that the 
communication can be stored in the network or in the recipient’s terminal 
equipment until it is collected by the recipient. 
21 The appeal court held that, in the case of the inbox advertising at issue, no such 
collection takes place. It stated that it follows from recital 27 of Directive 2002/58 
that collection of the message presupposes a conscious act on the part of the 
addressee. After becoming aware of the communication, the recipient of the 
message must access the online data by performing an operation, that is to say by 
means of an externally directed intervention made of his own free will. What 
matters is that, by requesting the collection, the collector can trigger a 
programmatically prescribed transfer of the data in question. According to the 
appeal court, there is no message collection in that sense in the present case. On 
the contrary, the user of the email service has only to open the email service, via 
an internet browser, on Deutsche Telekom’s website in order to prompt an ad 
server to display the advertising banner in real time, the user being unaware that 
this process is under way and unable to opt for or against the display of his own 
free will. 
22 That interpretation is consistent with the possible meaning of the term ‘collection’ 
in Article 2(h) of Directive 2002/58/EC. It might also be supported by recital 27 
of Directive 2002/58. This states that, in the case of electronic mail, the 
transmission of a communication is completed as soon as the addressee collects 
the message, typically from the server of his service provider. That wording could 
indicate that the collection of an email presupposes an activity on the part of the 
user the purpose of which is to transmit a message, typically from the service 
provider’s server. 
23 According to that strict interpretation, again based on the standard definition of an 
email, the inbox advertising at issue does not meet the criteria of an electronic 
mail within the meaning of Article 2(h) of Directive 2002/58/EC. By opening his 
email account on the service provider’s web page, the user registers his intention 
to have his emails, which are stored on the service’s email server, displayed and 
transferred to him. Experience shows, however, that it is not usually his intention 
also to have additional advertising messages inserted into his e-mail account inbox 
by an ad server. 
24 Militating against the view taken by the appeal court, on the other hand, is, once 
again, a functional interpretation informed by the protective objective pursued by 
Article 13(1) of Directive 2002/58. In accordance with that objective, users are to 
be protected from unsolicited advertising communications, which may be 
relatively easily and cheaply sent by advertisers via an electronic communications 
network and may impose a burden on the user (recital 40 of Directive 2002/58). In 
the light of that objective, there seems to be little to support the idea of 
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distinguishing between an email with advertising content — which may or may 
not be in the form of a mass mailing — that indisputably falls within the definition 
of electronic mail, on the one hand, and the advertising message at issue, on the 
other. Both messages appear in the inbox, and therefore within that part of the web 
page opened by the user in order to view his emails which is expressly designated 
for them. Moreover, from the point of view of the burdensome effect to be 
prevented by Article 13(1) of Directive 2002/58, it makes no difference whether 
the advertisement is inserted into the email account inbox by one of the service 
provider’s mail servers, by one of its ad servers or by an undertaking working in 
conjunction with that provider. On the contrary, the correct interpretation is once 
again less likely to be technical and more probably one that is a function of the 
objective of protection and takes into account the burdensome effect that a 
particular form of advertising has on the user. This might follow from the fact that 
the contested advertisement is displayed in the email account inbox and thus 
transmitted to an area in which the user expects to find only email messages which 
are individually addressed to him. 
25 Such an interpretation based on the objective of protection is also compatible with 
the wording of Article 2(h) of the directive. There is a ‘collection’ in the sense of 
an operation performed by the user with the purpose of consulting the messages 
delivered to his email account inbox. According to the appeal court’s findings, the 
conveyance of the advertisement from the ad server to the inbox is triggered by 
the user navigating to his email account page on the internet and, once there, 
logging in using his personal access data. The fact that, in so doing, the user 
usually intends to consult only private and business emails, rather than advertising 
messages which are uninteresting or a nuisance to him, such as spam or pop-ups, 
does nothing to detract from the existence of a purposive act of collection 
performed by opening the email account on the internet. 
26 Until the point at which its insertion was triggered by the login, the inbox 
advertising at issue was stored on an ad server and therefore on the internet. 
27 Recital 27 of Directive 2002/58, which states that, in the case of electronic mail, 
the transmission is completed when the addressee collects the message, typically 
from the server of his service provider, does not appear to indicate otherwise. It 
does not support the inference that the concept of electronic mail covers only 
messages stored on the service provider’s own server, not least because it follows 
from the use of the term ‘typically’ that the legislature did not thereby lay down 
an exhaustive definitional condition, but merely described the situation that 
usually obtains in practice. Account must also be taken of the regulatory context 
of recital 27 of Directive 2002/58. That recital concerns the point at which traffic 
data must be deleted. The key criterion in this regard is the point at which the 
transmission of a communication is completed (see Article 6(1) and recital 26 of 
Directive 2002/58). In that context, recital 27 of Directive 2002/58 identifies this 
as being the point at which the transmission of electronic mail is completed by the 
collection of the message by the addressee. It is not evident that this supports the 
inference of decisive interpretative criteria for the protection of users’ privacy 
STWL STÄDTISCHE WERKE LAUF A.D. PEGNITZ 
 
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against unsolicited direct marketing by electronic mail as provided for in 
Article 13(1) of Directive 2002/58. 
The third question referred for a preliminary ruling 
28 The third question seeks to ascertain whether a message constitutes electronic 
mail within the meaning of Article 13(1) of Directive 2002/58 even where it is 
sent not to an individual recipient already specifically identified before 
transmission but — as in case at issue — randomly. 
29 The appeal court took the view that electronic mail within the meaning of 
Paragraph 7(2), point 3, of the UWG presupposes that the message is sent 
‘individually’, that is to say, to a specifically addressed recipient who is identified 
before sending and with whom prior communication as regards his consent to the 
sending of the message is therefore possible. This is said to follow from the fact 
that the lawfulness of the forms of advertising regulated by Paragraph 7(2), point 
2, of the UWG is conditional upon the existence of prior express consent on the 
part of the addressee. According to the appeal court, the requirement of such prior 
express consent logically presupposes the existence of a specific addressee who is 
able to tell the advertiser whether or not he consents to the advertisement; 
however, the advertisement at issue is displayed to customers of the free email 
service on a random basis, ruling out the possibility of any prior communication 
with regard to the customer’s consent. 
30 The referring court has doubts as to whether that view can be endorsed. In 
accordance with Article 13(1) of Directive 2002/58, the use of electronic mail for 
the purposes of direct marketing may be allowed only in respect of subscribers or 
users who have given their prior consent. However, it cannot be inferred a 
contrario from that requirement that all forms of direct advertising conducted over 
communications networks without consent are lawful if, on account of the 
technological processes used by the advertiser, users’ consent cannot be obtained 
prior to the use of a specific advertisement. 
The fourth question referred for a preliminary ruling 
31 The fourth question seeks to ascertain whether electronic mail is used for the 
purposes of direct marketing within the meaning of Article 13(1) of Directive 
2002/58 only where the user is the subject of a burden which is greater than a 
nuisance (nuisance being the finding reached by the appeal court in the case at 
issue). 
32 The appeal court took the view that the spirit and purpose of Paragraph 7(2), 
point 3, of the UWG, which must be determined in the light of recital 40 of 
Directive 2002/58, militate against the application of that provision to the 
advertising at issue. It states that it is true that the appearance of advertising within 
the mailbox — interspersed among the new incoming emails — is a nuisance to 
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the user of the email service. Moreover, since the advertising appears to the casual 
observer to be an email and is therefore more noticeable than advertising outside 
the inbox, the degree of nuisance it represents must be considered greater than that 
of advertising displayed at the edges of the mailbox. However, that advertising 
does not constitute a burden that is greater than a nuisance, or a cost, within the 
meaning of recital 40 of Directive 2002/58. In particular, the inbox advertisements 
are not included in the number of the customer’s unread emails, and do not take 
up any storage space in the inbox. The appeal court adds that, owing to the visual 
differences between emails and pop-ups, no effort is required to separate 
important electronic messages from junk electronic advertising. 
33 There is no clear answer to the question as to whether that interpretation can be 
endorsed. The wording of recital 40 of Directive 2002/58 might support the 
interpretation adopted by the appeal court. That recital does not concern nuisances 
to the user. It states rather that users of public electronic communications 
networks should be protected against intrusion of their privacy by unsolicited 
communications for direct marketing purposes because those forms of unsolicited 
commercial communications are on the one hand relatively easy and cheap to send 
and on the other 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. Since the present case concerns neither the cost 
to the user nor difficulties caused to electronic communications networks or 
terminal equipment, the decisive criterion is whether the inbox advertising places 
a burden on users’ privacy. However, recital 40 of Directive 2002/58 does not 
expressly provide that a nuisance may be sufficient to constitute a burden. 
34 That said, given that the key criterion is the protection of privacy against 
unsolicited direct marketing, the meaning of the term ‘burden’ also covers a 
disturbance of privacy in form of a nuisance, whereby the consumer is confronted 
with advertising (not only) in those areas of a web page which are typically used 
for that purpose and which the consumer can therefore readily ignore, but (also) in 
his email account inbox, and thus in an area of the email service provider’s web 
page in which email messages individually directed at the user are displayed, and 
which he will therefore consult with purpose, and thus take note of with particular 
attentiveness. What is more, experience shows that the user will feel more 
individually targeted by advertising messages which appear in the inbox expressly 
designated for messages personally addressed to him than by an advertising 
banner which is located, for example, at the outer edges of the web page and is 
clearly aimed at the general public. Such individually targeted communications 
may also — depending on the message and the subject matter of the 
advertising — produce an enhanced nuisance effect. 
35 It is also important to take into account in this regard that a private, password-
protected email account falls within the sphere of private life protected by the 
general right of personality. In that sphere, the person concerned must be 
protected not only against the effort he expends in having to screen messages 
addressed to him and separate advertising from other messages. As an emanation 
STWL STÄDTISCHE WERKE LAUF A.D. PEGNITZ 
 
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of his right to personal self-determination, the desire of the person concerned to 
keep his private life free of any forced confrontation with advertising and its 
suggestive effect warrants protection too. In accordance with Article 1(1) and 
recitals 1, 12 and 40 of Directive 2002/58, Article 13(1) of that directive also 
serves to protect a user’s privacy in the area of electronic communications. In 
addition, it is important to take into account, when assessing the nuisance effect of 
an advertising measure which is detrimental to privacy, that experience attests to 
the risk that a proliferation of advertising may increase the number of instances of 
nuisance.  
36 Since, from the point of view of the interpretation based on the protective 
objective pursued by Article 13(1) of Directive 2002/58, the decisive criterion is 
protection of privacy rather than protection of the user from being misled, it is 
irrelevant, for the purposes of examining that provision, that the appearance of 
advertising displayed in the user’s inbox is different from that of emails and that 
that distinction is also emphasised by the ‘advertisement’ notice that comes with 
inbox advertising. Moreover, experience shows that, because of the way they are 
constructed and displayed, and because of the need to read them superficially, 
such messages take up the user’s time even in the case where he is immediately 
able to identify one appearing in his email account inbox clearly and 
unequivocally as advertising and delete it. For the same reasons, the facts, as cited 
by the appeal court, that the advertisement is not included in the number of the 
customer’s unread emails and does not take up any storage space in his inbox do 
not preclude the finding that there has been an infringement of Article 13(1) of 
Directive 2002/58. 
37 In the light of the foregoing, it is probably true to say, contrary to the view taken 
by the appeal court, that the fact that a user of a private email service is confronted 
with advertising not only in places typically used for such messages but also in an 
area of his email provider’s web page which is expressly designated for emails 
personally addressed to him and to which he will necessarily pay particular 
individual attention, is definitely significant from the point of view of whether 
there has been an infringement of his privacy. That view is also supported by the 
appeal court’s findings. It stated that the appearance of advertising in the inbox — 
interspersed among new incoming emails — is a nuisance to the user of the email 
service. Since advertising may appear to the casual observer to be an email and 
may therefore be more noticeable than advertising outside the inbox, the degree of 
nuisance it represents must be considered greater than that of advertising 
displayed at the edges of the mailbox. Those findings are consistent with practical 
experience. 
The fifth question referred for a preliminary ruling 
38 The advertising at issue in the present case may be unlawful under Paragraph 7(2), 
point 1, of the UWG. The application of those provisions raises a question, 
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requiring an answer from the Court, as to the interpretation of the first sentence of 
point 26 of Annex I to Directive 2005/29. 
39 In accordance with Paragraph 7(2), point 1, of the UWG, an unacceptable 
nuisance within the meaning of the first sentence of Paragraph 7(1) of the UWG 
must always be assumed to be present in the case of advertising using a medium 
of commercial communication suitable for distance marketing which is not listed 
in points 2 and 3 of that provision and through which a consumer is persistently 
solicited even though he clearly does not want to be. That provision is intended to 
transpose the first sentence of point 26 of Annex I to Directive 2005/29 and must 
be interpreted consistently with the directive, in the light of that rule. Under 
point 26 of Annex I to Directive 2005/29, making persistent and unwanted 
solicitations by telephone, fax, email or other remote media, except in 
circumstances not relevant to the present case and to the extent justified under 
national law to enforce a contractual obligation, constitutes an aggressive 
commercial practice which must in all circumstances be considered unfair. The 
present case raises a question as to the interpretation of that provision of EU law 
to which no clear answer can be found. 
40 The fifth question seeks to determine what requirements are to govern the 
presence of ‘solicitation’ within the meaning of point 26 of Annex I to Directive 
2005/29.  
41 Solicitation presupposes as a defining feature the targeting of advertising at an 
individual customer. In that regard, the question arises as to whether an 
advertisement targeted at an individual meets the conditions governing the 
presence of solicitation only where a customer is contacted via a medium 
traditionally used for individual communication between a sender and a recipient, 
such as telephone, fax or email, or whether it is sufficient if — as in the present 
case — a connection with a specific customer is established by the fact that the 
advertisement is displayed in the inbox of a private email account and thus in an 
area in which the customer expects to find messages addressed to him personally. 
42 The wording of point 26 of Annex I to Directive 2005/29 is open to both 
interpretations. Since — as has been articulated above — inbox advertising 
impacts on the privacy of the customer and represents a greater nuisance to him 
than conventional banner advertising appearing in those areas of a web page that 
are usually reserved for that purpose, which have no individual connection with 
the user, the protective objective of that provision is probably impacted too.