Advertisement e-mails cause of most written warnings (Abmahnungen)
The majority of written warnings I see in my practice are caused by unlawful advertisement e-mails according to § 7 para. 2 no. 3 of the German Law Against Unfair Competition (Gesetz gegen Unlauteren Wettbewerb, UWG). Most of my clients are small and medium sized companies. Many entrepreneurs do not know that advertisement e-mails to other businesses (B2B) may in general only be sent with the approval of the e-mail recipient.
The written warning letter
If sent without such approval, my clients in many cases immediately receive a written warning by the recipient’s lawyer. The lawyer asks the company to desist sending such e-mails in the future and confirm this under threat of a contractual penalty. A template for an undertaking to desist is attached to the letter together with an invoice for the attorney’s fees in the amount of several hundred Euros in most cases. On top, the attorney often asks for damages pursuant to Art. 82 GDPR and for accessing the personal data pursuant to Art. 15 GDPR.
Requirements for violating § 7 para. 2 no. 3 UWG
Advertisement
After receiving such a letter, the company needs to check at first whether the e-mail was unlawful. This requires an advertising nature. One needs to know that the term “advertisement” has a broad meaning in the UWG, which includes indirect measures that may be able to positively influence the company’s revenues.
Approval
In one case our client received a warning even though he had only requested the recipient’s services. One could question the advertising intent of the e-mail. At any rate, our client could rightfully assume the recipient’s approval since providing the respective services is the company’s objective. Often the recipient declares on his website, e.g. in a contact form, for which purposes he would like to receive mail. Lacking such information, one could ask, but please do so without violating § 7 UWG. The approval does not need to be declared in text form, but you as the sender need to be able to prove it at any rate.
Exception for existing customers
§ 7 para. 3 UWG provides an exception for existing customers of the sender: The company may advertise (1) similar products and services that the customer had purchased (2) not too long ago (3) using the same e-mail address, (4) if the company had instructed the customer of such usage when processing the e-mail address, (5) unless the customer had objected to such usage. In most cases there was no proper instruction though. Even if there was, the questions of “similar” products and the temporal dimension need to be answered restrictively, since this is an exception to the legal default.
Legal consequences: What do I do after receiving a justified written warning? How much do I pay?
Declaration of discontinuance subject to penalties
If all requirements of the written warning are met, the company has to sign a declaration of discontinuance in order to do away with the risk of recurrent infringement. Without such a declaration, you risk a court injunction that increases costs. The declaration has to be subject to penalties, which means that the signer obligates himself to pay adequate penalties in case of any repeated violation.
Modified declaration
Even if the other party’s attorney drafted a declaration, you should only sign a modified version. For in many cases the sent drafts are excessive and limit behavior beyond the infringement in question, limiting other uses of the e-mail address or even other contact means. When modifying your declaration, you should make an exception for legal e-mails under § 7 para. 3 UWG.
You can find a template in German for a modified declaration of discontinuation in our download section.
Amount of penalties
The attorney’s draft often names a concrete amount of penalty for future infringements. This may have the advantage of planning reliability, but it does not consider the degree of negligence or potential damage depending on the circumstances of the case. That’s why one should commit to paying adequate damages, the amount of which may be set by the recipient, but can always be challenged in court.
Attorney fees
Any violation of § 7 para. 2 no. 3 UWG also violates the recipient’s rights such as the company owners’ right of occupation according to Art. 12 para. 1 of the Basic Law, Germany’s constitution. This entails having to pay for the ensuing damages. In case of a written warning this includes the costs of the attorney of the recipient, however capped by the statutory fees under the lawyer’s compensation act (Rechtsanwaltsvergütungsgesetz, RVG). This depends on the amount in dispute, which in turn depends on the circumstances of the individual case. There are many court decisions that rule on an amount of dispute of 5,000 EUR on average. If, however, a violation of GDPR and ensuing additional damages are claimed, the amount of dispute and in consequence the fees could be higher.
Damages according to Art. 82 GDPR
Does GDPR even apply?
I have seen several written warning letters that claimed damages according to Art. 82 GDPR, even if GDPR does not apply. This depends mainly on the e-mail address and the legal form of the recipient. For, the GDPR requires processing of personal data. If the e-mail address contains names, this qualifies as personal data under the GDPR. This is also the case for addresses containing job titles because this identifies the person behind the title. Even a neutral e-mail address such as “info@” can exceptionally qualify as personal if the recipient is a solo-entrepreneur. If the e-mail processes additional data, e.g. the recipient is addressed by name, the GDPR applies regardless of the name of the e-mail address.
Claim to access personal data
If you processed personal data, the e-mail’s recipient has the right to request access to his personal data according to Art. 15 GDPR that has to be provided within at most one month.
Amount of damages
The amount of damages pursuant to Art. 82 GDPR depends on the severity of the violation. In ordinary cases, German courts have ruled on amounts between 100€ and 500€. This is the area where you can negotiate the most when receiving a lawyer’s warning letter.
Conclusion
Before sending out unsolicited e-mails, you should also in a B2B setting check whether doing so could trigger a warning letter or an injunction. If you receive a warning letter, check whether its requirements are met and, if so, what you are legally obligated to do and pay. We gladly help you in each step of the way as the right advisor in these cases due to our experience in e-commerce and data privacy law.
Published on 24.10.2025