Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 26 February 2020 — StWL Städtische Werke Lauf a.d. Pegnitz GmbH v eprimo GmbH

(Case C-102/20)

(2020/C 209/12)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

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

Defendant: eprimo GmbH

Other party to the proceedings: Interactive Media CCSP GmbH

Questions referred

1. Does the concept of ‘sending’ within the meaning of Article 2(h) of Directive 2002/58/EC (1) 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 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, (2) 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?

(1) 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).

(2) 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).