# Germany — UWG §7 Email Marketing

> Germany's unfair-competition route to email consent: UWG §7(2) no. 2 express prior consent for B2C and B2B, the §7(3) exception's four cumulative conditions, the double-opt-in case law, and enforcement by competitors via cease-and-desist.

Source: emailmarketing.net — https://emailmarketing.net/learn/compliance/germany-uwg-email

If you send marketing email to recipients in Germany, you need their prior express consent, whether they are consumers or businesses, and you should be able to prove it with a documented double opt-in.

> **This is not legal advice.** It summarizes the Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, UWG), quoted from the official English translation at gesetze-im-internet.de. The translation is not binding, and it includes amendments up to the Act of 6 May 2024; the German text is the one that applies. The translation was retrieved through the Internet Archive (a capture of 15 May 2026), because the official site could not be reached when this summary was written.

Germany implements [ePrivacy Art. 13](https://emailmarketing.net/learn/compliance/eu-eprivacy-and-gdpr-email-marketing) not mainly through data protection law but through **unfair competition law**: UWG §7, which serves to implement Art. 13 of Directive 2002/58/EC. Two consequences make Germany the strictest major email market:

1. **There is no exception for B2B.** §7(2) no. 2 requires "the addressee's prior express consent" for advertising by electronic mail, and the addressee can be a consumer **or a business**. The UK, France and the Nordic countries have opt-out rules for corporate recipients; Germany does not, so B2B email marketing needs the same express opt-in as B2C.
2. **Competitors enforce the rules.** Violations are policed mainly not by a data protection authority but by **competitors and associations**, through the system of cease-and-desist letters (*Abmahnung*). The process is fast, started by private parties, and generates fees, so enforcement is common in practice.

## §7: the rule

**§7(1):** "A commercial practice which constitutes an unacceptable nuisance to a market participant is illegal. This in particular applies to advertising in cases where it is apparent that the solicited market participant does not want this advertising."

**§7(2):** an unacceptable nuisance is **always assumed** for:

- **no. 1**: telephone advertising to a consumer without prior express consent (or to another market participant without at least presumed consent);
- **no. 2**: "advertising using an automated calling machine, a fax machine **or electronic mail without the addressee's prior express consent**";
- **no. 3**: advertising messages (a) where the sender's identity is hidden or kept secret, (b) that violate §6(1) of the Digital Services Act or lead the recipient to a website that does, or (c) that have **no valid address** to which the recipient can send a request to stop, free of charge apart from basic transmission costs.

German courts read "advertising" broadly: any communication meant to promote sales, including newsletters, satisfaction surveys used for promotion, and emails that try to win back inactive customers.

## §7(3): the exception (the German soft opt-in), with four conditions that must all be met

Despite §7(2) no. 2, email advertising is not an unacceptable nuisance **only if all four** of these conditions are met:

1. "the entrepreneur has obtained from the customer the latter's electronic mail address **in connection with the sale of goods or services**;
2. the entrepreneur uses the address for direct advertising of **his or her own similar goods or services**;
3. the customer **has not objected** to this use; and
4. the customer is **clearly and unequivocally advised, when the address is collected and each time it is used**, that he or she can object to such use at any time, without costs arising by virtue thereof, other than transmission costs in accordance with the basic rates."

In practice, German courts require an actual **sale**. Fieldfisher notes "transaction required": an enquiry alone does not qualify, unlike the UK's reading of "negotiations". "Similar" is interpreted narrowly. Condition 4 fails if the notice about objecting was missing when the address was collected, and that cannot be fixed afterward. Because the sender must prove all four conditions, **relying on §7(3) is rare in German practice, and the standard advice is documented double opt-in consent** (Fieldfisher, Jan 2024).

## Double opt-in case law

The law says "prior express consent", and the case law makes a **documented double opt-in** the de facto standard of proof:

- **BGH, judgment of 10 Feb 2011, I ZR 164/09** (*Double-opt-in-Verfahren*). The sender bears the **full burden of proving** the specific declaration of consent. A simple signup on a web form (single opt-in) is not enough, because "misuse by unauthorised persons cannot be ruled out": anyone can type in someone else's address. Consent given electronically must be stored and be printable at any time. The confirmed double opt-in (a signup followed by a click on a link in a confirmation email) is the recognised way to show that the holder of the address consented personally.
- **OLG München, judgment of 27 Sep 2012, 29 U 1682/12.** The **confirmation email itself counts as advertising** if the sender cannot prove that the holder of the address asked for it. A "check your inbox" message sent to an address that never signed up is therefore already a violation of §7(2) no. 2. In practice, keep the confirmation email **strictly neutral** (no offers, no promotion, minimal branding), send only one, and log the context of the signup (time, IP address, form) so that you can prove the request itself. Since then, courts have generally accepted neutral double opt-in confirmations; a promotional one loses that protection.
- The consent must also meet the **GDPR standard** ([Art. 4(11) and Art. 7: granular, informed, possible to withdraw, and with no pre-ticked boxes](https://emailmarketing.net/learn/compliance/eu-eprivacy-and-gdpr-email-marketing)). German data protection authorities and courts apply both sets of rules side by side, and consent that is invalid under the GDPR cannot be valid under the UWG.

For telephone advertising, §7a also requires documenting a consumer's consent "in an adequate form" and **keeping the proof for five years** from when consent was given and after each use, ready to show the Federal Network Agency on request. No equivalent statutory retention rule exists for email consent. However, because the BGH puts the burden of proof on the sender, the practical standard is to keep consent records indefinitely (until the relationship has ended and the limitation periods have run out).

## Enforcement

- **Who can sue (§8(3)).** Claims to stop and prevent the violation belong to (1) **any competitor** with a genuine presence in the market, (2) **qualified trade associations** on the §8b list (for example, the Wettbewerbszentrale), (3) **qualified consumer associations** on the list under the Injunctive Relief Act, and (4) chambers of industry and commerce, and chambers of crafts. The recipient can also bring a claim personally under general civil law (an injunction or damages, through BGB §§823, 1004 by analogy). Businesses whose staff receive spam sue as market participants.
- **How an Abmahnung works.** The claimant sends a formal warning that demands a **declaration to cease and desist, backed by a contractual penalty** (typically several thousand euros for each future violation), and reimbursement of legal fees. If the sender refuses, a **preliminary injunction** follows quickly. A single unsolicited email that can be proven is enough to start this process, which is why one campaign sent to the wrong people in Germany produces legal letters in a way it does not elsewhere. §8c limits abusive series of warnings (where generating fees is the main purpose, values are inflated, or penalties are excessive), in response to the so-called *Abmahnindustrie*, but legitimate claims remain routine.
- **The risk of a repeat violation** is presumed after one violation. Only the declaration backed by a penalty, or a final judgment, removes it.
- **Fines.** The regulatory fines under §20 (up to **€300,000**) cover **telephone and automated call** advertising without consent, and failures to document under §7a (up to €50,000). They do **not cover email**, which is enforced through civil claims as described above. Violations of email consent can also lead to **GDPR fines** from the data protection authorities (up to €20M/4% for infringements of the basis for consent), because sending the mail means processing personal data without a lawful basis.

## Deliverability tie-in

Germany's legal strictness and the strictness of its inboxes belong to one ecosystem. The main German mailbox providers ([GMX, WEB.DE and mail.com, owned by United Internet](https://emailmarketing.net/learn/providers/gmx-web-de-postmaster)) support the allowlisting program of the **Certified Senders Alliance (CSA)**. Its admission criteria mirror the legal standard: documented consent, an expectation of double opt-in, a working unsubscribe, and sender transparency as required by §7(2) no. 3.

Advising a sender to mail Germany without a documented double opt-in is therefore wrong in two ways. Legally, the sender cannot meet the burden of proof and is exposed to an Abmahnung. Operationally, the sender does not meet the filtering expectations of the CSA and of United Internet. For lists that mix several EU countries, the safe baseline is the German standard (see the [table of differences between member states](https://emailmarketing.net/learn/compliance/eu-eprivacy-and-gdpr-email-marketing)).