StWL Städtische Werke Lauf a.d. Pegnitz GmbH – CJEU Judgment (Germany, 2021)

eprimo, a German electricity supplier, distributed advertisements consisting of displaying banners in the email inboxes of the T-Online free email service. When users opened their inbox, those advertisements were shown to them at random, indistinguishable from the list of emails in the users' inbox except for the fact that the date was replaced by the word ‘Anzeige’ (advertisement), no sender was mentioned and the text appeared against a grey background. When clicking on what looked like an email at first glance, the users were shown that advertisement. This procedure is known as inbox advertising. Städtische Werke Lauf a.d Pegnitz GmbH (‘StWL’) is a competitor of eprimo and considered eprimo's inbox advertising unlawful under the rules of unfair competition because there was no prior consent by the users. StWL, after at first succeeding with an action before the Regional Court of Nuremberg-Fürth, lost the case in the second instance before the Higher Regional Court of Nuremberg. When it appealed at the German Supreme Court (Bundesgerichtshof - BGH), the BGH referred the subject to the CJEU. In particular, it asked whether inbox advertising was compatible with the ePrivacy Directive and the Unfair Commercial Practices Directive which require consent for electronic mail that is sent to users for the purposes of direct marketing, prohibiting unsolicited communications. The CJEU held that such inbox advertising is unlawful without prior consent according to the ePrivacy Directive and the Unfair Commercial Practices Directive. First, the CJEU clarified that the process of inbox advertisements constitutes the use of communications for the purposes of direct marketing regardless of the recipients being chosen at random. Then, it stated that the use of e-mails is allowed for the purposes of direct marketing only if the the recipient has given free, specific and informed consent. It emphasized the fact that such advertising messages do not need to reach any threshold