Advertising to existing customers by email is a key element of customer loyalty and e-commerce marketing for companies. In Germany, the permissibility of this direct advertising is governed by the strict requirements of Section 7(3) of the Unfair Competition Act (UWG). This provision implements the European legal requirement of Article 13 of the ePrivacy Directive. In practice, however, there was uncertainty regarding the scope of the existing customer privilege, particularly with regard to the necessary remuneration for the service and the relationship to the General Data Protection Regulation (GDPR). The ruling of the European Court of Justice (ECJ) of 13 November 2025 in case C-654/23 (Inteligo Media SA) now provides clarity and extends the scope of the provision.
Obtaining the email address: Does the “sale” of free services count?
Until now, some German legal literature and case law has taken the view that, within the meaning of Section 7(3)(2) of the German Unfair Competition Act (UWG), an email address is only obtained “in connection with the sale of a good or service” if an exchange of services for remuneration (e.g. a purchase contract) has actually taken place. Simply registering for free on a platform or creating a free user account did not seem to confer this privilege.
The ECJ has now rejected this restrictive interpretation. In the underlying case, in which a user set up a free account on an online platform in order to obtain free access to a limited number of articles and a free newsletter, the Court affirmed the application of the existing customer privilege. The email address is also obtained “in connection with the sale of a good or service” if the user makes use of a free service that serves to initiate or maintain a customer relationship. This aspect is important for the email strategy of companies that rely on free or trial offers, as it expands the circle of potential existing customers under Section 7(3) UWG.
Relationship to the GDPR: Does Art. 13 ePrivacy Directive supersede the additional requirements of Art. 6 GDPR?
A second, equally important clarification concerns the relationship between unfair competition law and data protection law. It was controversial whether, in addition to the admissibility of email advertising under Section 7 (3) UWG, an additional legal basis for the processing of email addresses for the purpose of direct marketing under Article 6 (1) GDPR was required.
In its ruling, the ECJ clarifies that Article 13(2) of the ePrivacy Directive constitutes a specific legal basis governing the conditions for the lawful processing of personal data when sending unsolicited messages. If the strict requirements of Art. 13(2) (and thus of Section 7(3) UWG) are met, the additional legal requirements of Art. 6(1) GDPR are not applicable in this respect. The ECJ thus confirms that the ePrivacy Directive functions as a “lex specialis” and that there is no need for a double legal basis check. The admissibility of processing the email address for the advertised direct marketing is ultimately based on the criteria of the existing customer privilege.
Conclusion
The ruling strengthens the position of advertising companies and creates legal certainty. The scope of the existing customer privilege can now also be applied to addresses obtained from the provision of free services. Furthermore, if the requirements of Section 7(3) UWG are met, companies do not have to base the processing on an additional legal basis under Article 6 GDPR. However, it should be noted that the other requirements of Section 7(3) UWG – in particular, advertising for own similar products/services and the clear possibility of objection at any time – must still be complied with.
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