BGH - I ZR 7/16

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BGH - VI ZB 39/18

Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(11) GDPR Article 94 GDPR Article 95 GDPR Article 2(f) Directive 2002/58/EC Article 5(3) Directive 2002/58/EC Article 2(h) Directive 95/46/EC § 1 (UKlaG - Injunctions Act Unterlassungsklagengesetz) § 307 Civil Code (Bürgerliches Gesetzbuch - BGB) § 7 Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb - UWG) § 15 Telemedia Act (Telemediengesetz - TMG)
Decided:	28.05.2020
Published:	28.05.2020
Parties:	Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e. V. Planet49 GmbH
National Case Number/Name:	VI ZB 39/18
European Case Law Identifier:
Appeal from:	OLG Frankfurt (Germany)
Appeal to:
Original Language(s):	German
Original Source:	Entscheidungsdatenbank des Bundesgerichtshofs (in German)
Initial Contributor:	n/a

Following the CJEU's preliminary ruling in the "Planet 49 case" (C-673/17), the German Federal Court of Justice has decided on the question of which requirements must be met for consent to telephone advertising and the storage of cookies on the user's terminal device.

English Summary

Facts

See facts at the GDPRhub entry to the "Planet 49 case" (C-637/1/).

The second checkbox containing a preselected tick used by the defendant (Planet 49) read as follows:

English translation	German original
‘I agree to the web analytics service Remintrex being used for me. This has the consequence that, following registration for the lottery, the lottery organiser, [Planet49], sets cookies, which enables Planet49 to evaluate my surfing and use behaviour on websites of advertising partners and thus enables advertising by Remintrex that is based on my interests. I can delete the cookies at any time. You can read more about this here.’	"Ich bin einverstanden, dass der Webanalysedienst Remintrex bei mir eingesetzt wird. Das hat zur Folge, dass der Gewinnspielveranstalter, [Planet49], nach Registrierung für das Gewinnspiel Cookies setzt, welches Planet49 eine Auswertung meines Surf- und Nutzungsverhaltens auf Websites von Werbepartnern und damit interessengerichtete Werbung durch Remintrex ermöglicht. Die Cookies kann ich jederzeit wieder löschen. Lesen Sie Näheres hier."

In the explanation linked to the word "here", it was pointed out that the cookies would receive a specific, randomly generated number (ID) associated with the registration data of the user who entered his/her name and address in the web form provided. If the user with the stored ID would visit the website of an advertising partner registered for Remintrex, this visit should be recorded, as well as which product the user is interested in and whether a contract is concluded.

Holding

Following the CJEU's reasoning in its preliminary ruling, the BGH dismissed the defendants' appeal and, on the plaintiff's appeal, overturned the appellate judgment regarding cookie consent and restored the first instance conviction of the defendant:

The declaration of consent by the preselected tick box does not constitute an "informed indication of the data subject's wishes" within the meaning of Article 2(h) Directive 95/46/EC or an "informed and unambiguous indication of the data subject's wishes" within the meaning of Article 2(h) GDPR. Therefore there is no legally valid consent for the data processing.
The plaintiff is entitled to injunctive relief against the storage of cookies on his device under § 1 UKlaG in connection with § 307 BGB because the request for consent by a preselected tick box constitutes an "unreasonable disadvantage to the user".
The request for consent by a preselected tick box further violates § 15 TMG. An interpretation of § 15 TMG in light of Article 5(3) Directive 2002/58/EC leads to the conclusion that there is no effective consent within the meaning of these provision if the storage of cookies is permitted by a present checkbox which the user must uncheck to refuse consent.
Pursuant to Article 94 and 95 GDPR the above said fully applies also after 25.05.2018.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the German original for more details.

FEDERAL COURT OF JUSTICE
ON BEHALF OF THE PEOPLE
JUDGMENT
I ZR 7/16
Promulgated on: 28 May 2020
Führinger
Clerk of the court as clerk of the court registry
in the litigation
Reference book: yes
BGHZ: no
BGHR: yes

Cookie consent II

Directive 2002/58/EC Art. 5(3) and Art. 2(f); Directive 2009/136/EC Art. 2(5);
Directive 95/46/EC Art. 2 lit. h; Regulation (EU) 2016/679 Art. 4 No. 11; UKlaG § 1; BGB
§ 307 Bm, Cl; TMG § 15 para. 3

a) Effective consent to telephone advertising within the meaning of Section 7 (2) no. 2 case 1 UWG does not exist if the consumer, when declaring consent, is confronted with an elaborate procedure of deselecting partner companies included in a list, which may cause him to refrain from exercising this choice and instead leave the choice of advertising partners to the entrepreneur. If the consumer, in the absence of knowledge of the content of the list and without exercising the right of choice, does not know which products or services of which traders the consent covers, there is no consent for the specific case.

b) § Section 15 subsec. 3 sentence 1 of the German Telemedia Act (TMG) must be interpreted in conformity with Article 5 subsec. 3 sentence 1 of Directive 2002/58/EC to the effect that the service provider may only use cookies to create user profiles for the purposes of advertising or market research with the consent of the user. An electronically declared consent of the user, which allows the retrieval of information stored on his terminal device by means of cookies by way of a pre-set checkbox, does not satisfy this consent requirement.

BGH, Judgment of 28 May 2020 - I ZR 7/16 - OLG Frankfurt am Main Frankfurt am Main Regional Court

ECLI:DE:BGH:2020:280520UIZR7.16.0

At the hearing on 30 January 2020, the First Civil Senate of the Federal Court of Justice (Bundesgerichtshof) by the Presiding Judge Prof. Dr. Koch, the Judge Dr. Löffler, the Judge Dr. Schwonke, the Judge Feddersen, and the Judge Dr. Schmaltz

found to be right:
The appeal of the defendant against the judgment of the 6th Civil Senate of the Higher Regional Court Frankfurt am Main of 17 December 2015 is dismissed with the proviso that the addition mentioned in the second paragraph of the operative part of the judgment reads "(...) if this provision is used in conjunction with a list as reproduced in Annex K 1 to the application".
On appeal by the plaintiff, the aforementioned judgment is set aside with regard to the costs and insofar as it was found to the plaintiff's disadvantage.
To the extent of the annulment, the appeal of the defendant against the judgment of the Regional Court Frankfurt am Main - 6th Civil Chamber - of 10 December 2014 is dismissed.
The plaintiff shall bear 1/3 of the costs of the proceedings at first instance. The remaining costs of the legal dispute shall be borne by the defendant.

By law

Facts:
1 The plaintiff is the Federal Association of Consumer Centres (Bundesverband der Verbraucherzentralen), which is registered in the list of qualified institutions pursuant to § 4 UKlaG. The defendant offers participation in lotteries on the internet.

2 On 24 September 2013, the defendant organised a competition at the internet address "www. .de". After entering the postal code, the user was taken to a page on which the user's name and address had to be entered. Below the input fields for the address were two texts with checkboxes. The first text, whose checkbox did not have a pre-set tick, read:
I agree that some sponsors and cooperation partners may inform me by post or telephone or by e-mail/SMS about offers from their respective business area. I can determine these myself here, otherwise the selection is made by the organiser. I can revoke my consent at any time. Further information here.

3 The second hint text, which has a pre-set tick mark, is a
was to be the one:
I agree that the web analysis service R. is used for me. As a result, the competition organiser, P. GmbH, sets cookies after registration for the competition, which enables P. to evaluate my surfing and usage behaviour on websites of advertising partners and thus interest-based advertising by R.. I can delete the cookies at any time. Read more here.

4 Participation in the competition was only possible if at least the
tick has been set in front of the first hint text.

5 The text in the first note is preceded by the words "Sponsors and Cooperative
partner" and "here" led to a list containing 57 companies, their address, the business sector to be advertised and the type of communication used for the advertisement (e-mail, post or telephone) as well as the underlined word "unsubscribe" after each company. The list was preceded by the following notice:
By clicking on the "Unsubscribe" link, I decide that no advertising consent may be given to the named partner/sponsor. If I have not unsubscribed any or not enough partners/sponsors, select
P. will select partners/sponsors for me at its own discretion (maximum number: 30 partners/sponsors).

6 The following information was displayed when pressing the electronic link underlaid with the word "here" in the second notice text:
The cookies set with the names ceng_cache, ceng_etag, ceng_png and gcr are small files that are stored on your hard disk by the browser you are using and through which certain information flows that enable more user-friendly and effective advertising. The cookies contain a certain randomly generated number (ID), which is also assigned to your registration data. If you then visit the website of an advertising partner registered for R. (please refer to the data protection declaration of the advertising partner to find out whether registration exists), it is automatically recorded by R. on the basis of an iFrame integrated there that you (i.e. the user with the stored ID) have visited the website.
ID), which product you were interested in and whether a contract was concluded.
Subsequently, P. GmbH may send you advertising emails based on the advertising consent given during the competition registration, which take into account your interests shown on the website of the advertising partner. After revocation of the advertising permission, you will of course no longer receive any e-mail advertising.
The information transmitted by the cookies is used exclusively for advertising in which products of the advertising partner are presented. The information is collected, stored and used separately for each advertising partner. Under no circumstances are cross-advertising partner user profiles created. The individual advertising partners do not receive any personal data.
If you have no further interest in the use of cookies, you can delete them at any time via your browser. You will find instructions in the help function of your browser.
No programs can be executed or viruses transmitted through the cookies.
Of course, you have the option to revoke this consent at any time. You can send your revocation in writing to P. GmbH [address]. However, it is also sufficient to send an e-mail to our customer service [e-mail address].

7 The plaintiff claimed that the declarations of consent required by the defendant in telephone advertising and the setting of cookies did not meet the requirements of § 307 BGB in conjunction with § 7 para. 2 no. 2 UWG and §§ 12 ff. TMG. A pre-court warning was unsuccessful.

8 The plaintiff has - insofar as it is still relevant for the appeal proceedings - lastly applied,
I. Order the defendant, under penalty of a more detailed order, to refrain from including the following provisions, or provisions with identical content, the acceptance of which is mandatory for participation in a lottery, in lottery agreements with consumers, as well as from relying on the provisions in the execution of such agreements concluded after 1 April 1977:
1. ☐ I agree that some sponsors and cooperation partners may inform me by post or telephone or e-mail/SMS about offers from their respective business area. I can determine these myself here, otherwise the selection is made by the organiser. I can revoke my consent at any time. Further information here; (...)
3. Subsequent determination with preset checkbox:
I agree that the web analysis service R. is used for me. This means that the competition organiser, P. GmbH, sets cookies after registration for the competition, which enables P. to evaluate my surfing and usage behaviour on websites of advertising partners and thus interest-based advertising by R.; (...)
II. order the defendant to pay the plaintiff €214 plus interest at five percentage points above the respective base rate since 15 March 2014.
9 The Regional Court granted the claims I 1, I 3 and II and dismissed the rest of the action. The defendant appealed against this decision.
The plaintiff filed an appeal in which it continued to pursue its motion to dismiss the action. On appeal, the plaintiff requested that the appeal be dismissed with the proviso that the first part of the operative part of the claim for injunctive relief - granting claim I 1 - be supplemented by the addition "if this provision is used in conjunction with a list as reproduced in Annex K 1 to the application". The Court of Appeal dismissed claim I 3 and dismissed the remainder of the appeal with the proviso requested by the plaintiff, formulating it as "notice of motion" instead of "statement of claim". In the appeal allowed by the Court of Appeal, the plaintiff pursued his claim I 3 and the defendant its motion to dismiss the action in its entirety. The parties each request that the appeal of the opposing party be dismissed.

10 The Senate referred a question to the Court of Justice of the European Union on the interpretation of Article 5(3) and Article 2(f) of 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), as amended by Article 2(5) of Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services. November 2009 amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No. 2006/2004 on consumer protection cooperation (OJ L 337, 18 December 2009, p. 11), as amended, in conjunction with Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 1).
of 23 November 1995, p. 31) and on the interpretation of Article 6(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation, OJ 2016 L 119/1, p. 1). L 119/1 of 4 May 2016, p. 1) referred the following questions to the Court of Justice for a preliminary ruling (Decision of 5 October 2017 - I ZR 7/16, GRUR 2018, 96 = WRP 2018, 87 - Cookie consent I):
1. a) Is it effective consent within the meaning of Article 5(3) and Article 2(f) of Directive 2002/58/EC, as amended by Article 2(5) of Directive 2009/136/EC, in conjunction with Article 2(h) of Directive 95/46/EC, if the storage of information or access to information already stored in the user's terminal equipment is permitted by means of a pre-set tick box which the user must uncheck in order to refuse to give consent?
b) In the application of Article 5(3) and Article 2(f) of Directive 2002/58/EC in conjunction with Article 2(h) of Directive 95/46/EC, does it make any difference whether the information stored or accessed is personal data?
c) In the circumstances set out in Question 1(a), is there effective consent within the meaning of Article 6(1)(a) of Regulation (EU) 2016/679?
2. what information must the service provider provide to the user as part of the clear and comprehensive information to be provided under Article 5(3) of Directive 2002/58/EC? Does this also include the functional duration of the cookies and the question of whether third parties have access to the cookies?

11 The Court of Justice of the European Union answered these questions as follows (Judgment of 1 October 2019 - C-673/17, GRUR 2019, 1198 = WRP 2019, 1455 - Verbraucherzentrale Bundesverband/Planet49):
1. Articles 2(f) and 5(3) of Directive 2002/58/EC, as amended by Directive 2009/136, read in conjunction with Article 2(h) of Directive 95/46/EC, and Articles 4(11) and 6(1)(a) respectively, must be interpreted as meaning that there is no valid consent within the meaning of those provisions where the storage of information or access to information already stored in the user's terminal equipment of a website does not constitute consent. a of Regulation (EU) 2016/679 must be interpreted as meaning that there is no effective consent within the meaning of those provisions where the storage of information or access to information already stored in the user's terminal equipment of a website is permitted by means of cookies by means of a pre-set checkbox which the user must uncheck in order to refuse to give consent.
2. Articles 2(f) and 5(3) of Directive 2002/58, as amended by Directive 2009/136, read in conjunction with Article 2(h) of Directive 95/46, and Articles 4(11) and 6(1)(a) of Regulation 2016/679, are not to be interpreted differently depending on whether or not the information stored or accessed on the user's terminal equipment of a website constitutes personal data within the meaning of Directive 95/46 or Regulation 2016/679.
3. Article 5(3) of Directive 2002/58, as amended by Directive 2009/136, must be interpreted as meaning that information on the duration of the functioning of the cookies and on whether third parties can obtain access to the cookies is included among the information which the service provider must give to the user of a website.

Reasons for decision:

12 A. The Court of Appeal assumed that the plaintiff could only demand injunctive relief with regard to the declaration of consent to telephone advertising, but not with regard to the declaration of consent to the use of cookies. In this regard, it stated:

13 The action was admissible with regard to application I 1. The reference in the appeal to Annex K 1 was not an amendment to the action, but a clarification of the prohibition pursued in the application. The declaration of consent to telephone advertising was a general business condition which unreasonably disadvantaged the consumer because the declaration of consent was not sufficient to justify advertising calls under § 7 para. 2 no. 2 UWG. Claim I 3, on the other hand, was unfounded because the declaration of consent to the use of cookies was not objectionable either in view of the default setting of a check mark or in terms of content. The defendant also owed payment of the warning costs.
(application II) because the warning with regard to application I 1 was justified.

14 B. The defendant's appeal against this assessment is unsuccessful (see B I). The plaintiff's appeal, on the other hand, is successful (see B.
II).

15 I. The defendant's appeal is unsuccessfully directed against the conviction according to the claims I 1 and II.

16 The Court of Appeal correctly held that Claim I 1 with its reference to Annex K 1 was admissible.

17 a) The Court of Appeal's assumption that the plaintiff is entitled to bring an action under § 3.1 sentence 1 no. 1 UKlaG does not reveal any error of law and is not called into question by the defendant's appeal.

18 b) Without success, the defendant's appeal asserts that the claim I 1, which was amended in the appeal instance by its addition of the reference to Annex K 1, should not have been decided on the merits for lack of the defendant's consent.

19 The decision that there was no amendment of the action is not contestable under § 268 ZPO. Moreover, the addition of the reference to Annex K 1 to Claim I 1 did not constitute an amendment of the action within the meaning of § 263 ZPO. The plaintiff's complaint was that the consumer did not realise the significance of the consent he had given because the possibility of deregistering individual companies from the list of 57 "sponsors and cooperation partners" (Annex K 1) was designed in such a complicated way that he would regularly leave the selection to the defendant. However, the plaintiff had initially not considered it necessary to refer to Annex K 1 in the application and had only done so after the Court of Appeal had pointed out that the wording of the application also covered constellations in which the list contained only a few companies. The subsequent

The modification of the application merely served to clarify that the application for an injunction was not intended to prohibit the defendant from using the contested declaration of consent per se, but only in the specific form of infringement in which the list in Annex K 1 is used (see BGH, judgment of 25 June 2015 - I ZR 145/14, GRUR 2015, 1019 marginal no. 12 = WRP 2015, 1102 - Mobiler Buchhaltungsservice).

20 c) Without success, the defendant's appeal objects that the
The operative part of the application for a declaration of failure to act is vague because Annex K 1 is not part of the judgment.

21 For the definiteness of the formula of the judgment (§ 313 para. 1 no. 4 ZPO), the principles for the definiteness of the claim pursuant to § 253 para. 2 no. 2 ZPO apply mutatis mutandis (see BGH, Judgment of 16 November 2006 - I ZR 191/03, GRUR 2007, 607 marginal no. 15 = WRP 2007, 775 - Telephone advertising for "individual contracts"; Judgment of 15 March 2012 - I ZR 128/10, GRUR-RR 2012, 475 marginal no. 16). The content of a judgement is primarily to be inferred from the formula of the judgement. If the formula of the judgment alone is not sufficient to determine the content, the facts of the case and the reasons for the decision, if necessary also the submissions of the parties, must be consulted for the interpretation of the formula of the judgment (see BGH, Judgment of 14 February 2008 - I ZR 135/05, GRUR 2008, 933 marginal no. 13 = WRP 2008, 1227 - Schmiermittel; Judgment of 24 July 2014 - I ZR 27/13, GRUR 2015, 269 marginal no. 19 = WRP 2015, 353 - K-Theory). The judgment pronouncement must be specified externally in such a way that it remains determinable even after pronouncement, as otherwise uncertainties may arise after the judgment has become final and in particular during enforcement. In order to ensure determinability, the content of the judgment must therefore in principle be set out in a uniform document (BGH, Judgment of 14 October 1999 - I ZR 117/97, BGHZ 142, 388, 391 [juris para. 16 and 17] - Musical-Gala).

22 However, a defect in the formula of the judgment is also harmless if its meaning is sufficiently clear from the content of the court documents to be used for interpretation (see BGH, judgment of 30 April 2009 - I ZR 66/07, GRUR 2009, 1183 marginal no. 6 = WRP 2009, 1501 - Räumungsverkauf wegen Umbau; judgment of 20 June 2013 - I ZR 55/12, GRUR 2013, 1235 marginal no. 13 = WRP 2014, 75 - Restwertbörse II). This is the situation in the dispute. Neither the parties to the dispute nor the trial court of first instance, which is competent to enforce the injunction pursuant to § 890 (1) sentence 1 of the Code of Civil Procedure, can have any doubts that only the list attached to the application of 28 January 2006 could be meant by the Annex K 1 referred to by the Court of Appeal in the injunction. Insofar as the court of appeal formulated in the operative part "as reproduced in Annex K 1 to the statement of claim", this was an obvious inaccuracy to be corrected ex officio by the senate pursuant to § 319 (1) ZPO; what was meant - as requested by the plaintiff and correctly reproduced in the facts of the appeal judgment - was obviously "as reproduced in Annex K 1 to the statement of claim".

23 The Court of Appeal was also right to order the defendant to cease and desist on the merits in accordance with Claim I 1, as modified in the appeal. The defendant is obliged to cease and desist pursuant to §§ 1, 3 para. 1 no. 1 UKlaG in conjunction with § 307 para. 1 BGB and § 7 para. 2 no. 2 UWG.

24 a) The Court of Appeal held that the objectionable declaration of consent to telephone advertising violated Section 307 (1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB) in conjunction with Section 7 (2) no. 2 of the Unfair Competition Act (UWG) because the selection process associated with the list demanded a disproportionate effort from the user and was offered in the expectation that the user would agree to the selection of companies by the defendant. Consent induced in this way
had not been made in full knowledge of the facts. This assessment stands up to legal scrutiny.

25 b) Pursuant to section 307 (1) sentence 1 BGB, provisions in general terms and conditions are ineffective if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. § Section 307 (2) no. 1 BGB stipulates that an unreasonable disadvantage is to be assumed in case of doubt if a provision is not compatible with the fundamental ideas of the statutory provision from which it deviates. These conditions are met in the case at issue with regard to § 7 para. 2 no. 2 UWG.

26 aa) The court of appeal regarded the objectionable declaration of consent as a general term of business within the meaning of § 305 para. 1 sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) made by the defendant. This does not show any error of law and is not challenged by the appeal. The provisions of § 305 et seq. BGB apply to the declarations of consent pre-formulated by the organisers of lotteries (see BGH, judgment of 25 October 2012 - I ZR 169/10, GRUR 2013, 531 nos. 16 to 20 = WRP 2013, 767 - Einwilligung in Werbeanrufe II).

27 bb) The objectionable declaration of consent does not meet the requirements of Section 7 (2) no. 2 case 1 UWG and is therefore invalid due to unreasonable disadvantage to consumers pursuant to Section 307 (1) BGB.

28 Pursuant to Section 7 (2) No. 2 Case 1 UWG, advertising by means of a telephone call to a consumer without the consumer's prior express consent always constitutes unreasonable harassment. This provision serves to implement Article 13 (3) and (5) sentence 1 of Directive 2002/58/EC. The term "consent" must therefore be defined in conformity with the Directive (see BGH, GRUR 2013, 531 marginal no. 23 - Einwilligung in Werbeanrufe II).

29 (1) Article 2, second sentence (f) of Directive 2002/58/EC refers to Article 2 (h) of Directive 95/46/EC for the definition of consent. When considering this reference, it should be noted that Directive 95/46/EC was repealed by Article 94(1) of Regulation (EU) 2016/679 with effect from 25 May 2018. Since then, pursuant to Art. 94(2), first sentence, of Regulation (EU) 2016/679, references to the repealed Directive are deemed to be references to the aforementioned Regulation. For the determination of the term consent, the definition provided for in Art. 4 No. 11 of Regulation (EU) 2016/679 must therefore be used for the period from 25 May 2018.

30 The claim for injunctive relief asserted by the plaintiff, based on the risk of repetition, is only justified if the act complained of was both unlawful at the time it was committed and unlawful according to the legal situation at the time of the decision (settled case-law; cf. BGH, judgment of 16 January 2020 - I ZR 74/16, GRUR 2020, 432 marginal no. 11 = WRP 2020, 456 - Kulturchampignons II, with the remainder). The existence of the claim for injunctive relief therefore requires that the statement contested in the dispute neither fulfils the requirements of Article 2(h) of Directive 95/46/EC nor those of Article 4(11) of Regulation (EU) 2016/679.

31 (2) According to Art. 2(h) of Directive 95/46/EC, consent means any
An expression of will that is freely given, specific to the case in question and informed. According to recital 17 of Directive 2002/58/EC, consent may be given by any appropriate means which expresses the wishes of the user in a specific and informed and freely given manner, including by ticking a box on an internet website. Consent is given "in full knowledge of the facts" if the consumer knows that his statement constitutes consent and what it relates to. Consent is given "for the specific case" if it is clear which products or services of which undertakings it specifically covers (see BGH, judgment of 17 July 2008 - I ZR 75/06, GRUR 2008, 923 marginal no. 16 = WRP 2008, 1328 - Faxanfrage im Autohandel [on § 7 para. 2 No. 3 UWG]; BGH, GRUR 2013, 531 marginal no. 24 - Einwilligung in Werbeanrufe II; BGH, judgment of 14 March 2017 - VI ZR 721/15, BGHZ 214, 204 marginal no. 24; judgment of 1 February 2018 - III ZR 196/17, GRUR 2018, 545 marginal no. 22 = WRP 2018, 442).

32 This is not the case in the dispute because, according to the findings of the Court of Appeal, which are not objectionable under the law of review, the design of the declaration of consent challenged by the plaintiff is designed to confront the consumer with an elaborate procedure of deselecting partner companies included in the list in order to induce him to refrain from exercising this choice and instead to leave the choice of advertising partners to the defendant. If the consumer, in the absence of knowledge of the content of the list and without exercising the right of choice, does not know which products or services of which entrepreneurs the consent covers, there is no consent for the specific case.

33 The fact that the consumer may well recognise the given multiplicity of advertising partners, as the defendant's appeal claims, does not change the fact that the consumer will regularly have no knowledge of the concrete content of the given consent due to the design of the selection process.

34 (3) According to Article 4(11) of Regulation (EU) 2016/679, consent shall mean any freely given specific, informed and unambiguous indication of wishes in the form of a statement or other unambiguous affirmative act by which the data subject signifies his or her agreement to personal data relating to him or her being processed. According to recital 32 of the Regulation (EU)
2016/679, consent should be given by a clear affirmative act indicating voluntarily, for the specific case, in an informed manner and unambiguously that the data subject consents to the processing of personal data relating to him or her. Consent is given for the specific case if the content, purpose and
the scope of the declaration are sufficiently specified (cf. BeckOK.DatenschutzR/Schild, 31st edition [as of 1 February 2020], Art. 4 GDPR marginal no. 125; Buchner/Kühling in Kühling/Buchner, DS-GVO BDSG, 2nd edition, Art. 4 GDPR marginal no. 8). In substance, there has thus been no change in the law in relation to the elements of the facts of informed consent required under Article 2(h) of Directive 95/46/EC.

35 Accordingly, the statement complained of in the dispute does not meet the requirements of Article 4 No. 11 of Regulation (EU) 2016/679 either because, according to the findings of the Court of Appeal, there is a lack of sufficiently specific consent.

36 (4) The defendant's appeal argues without success that the text of the consent and the text of the list, which can be reached by means of an electronic link, are to be regarded as a unit because the user, who is familiar with the special features of the internet, knows that information can be distributed on several pages which he can easily find by a simple mouse click. The defendant's appeal hereby substitutes its own appraisal of the facts for the appraisal by the court of facts without showing an error of law. The Court of Appeal found, in a manner unobjectionable under the law of review, that in the case of an internet lottery of the kind at issue, the effort involved in the selection of advertising partners associated with the challenged design was disproportionate for the consumer, if only for reasons of time, to the desired participation in the game and that it was therefore to be expected that the consumer would not be able to participate in the game.
The defendant will agree to the selection by the defendant. For this reason, the appeal's objection that the list contains a clear designation of the advertising partners and their field of business remains unsuccessful.

37 (5) The defendant's appeal is also not successful with its objection that a general term of business cannot be considered invalid solely because of its length. The Court of Appeal did not consider the challenged declaration of consent to be invalid solely because of the length of the list of sponsors linked to it, but because the design of the consent, taking into account its purpose of use - participation in a sweepstake on the internet - appears to be designed to prevent the consumer from taking notice and to induce him to transfer the right of choice to the defendant.

38 The Court of Appeal was also right to consider Claim II for reimbursement of the lump sum for warning costs as well-founded, because the warning was justified with regard to the act complained of in Claim I 1 within the meaning of Section 12 (1) sentence 1 UWG (see BGH, Judgment of 10 December 2009 - I ZR 149/07, GRUR 2010, 744 marginal no. 51 = WRP 2010, 1023 - Sondernewsletter).

39 II. the plaintiff's appeal, with which he challenges the dismissal of claim I 3, is successful.

40 The Court of Appeal considered Claim I 3 to be unfounded, stating that the declaration of consent to the use of cookies was not objectionable either in view of the default setting of a tick or in terms of content. The user recognised that he could remove the pre-set tick. The declaration of consent was sufficiently clear from a typographical point of view. In terms of content, it clearly informed the user about the use of cookies. The identity of third parties who could access the
information collected by the cookies does not have to be disclosed. This assessment does not stand up to legal scrutiny.

41 2 Contrary to the opinion of the Court of Appeal, the plaintiff is entitled to the injunctive relief asserted in claim I 3 pursuant to § 1 UKlaG in conjunction with § 307 (1) and (2) no. 1 BGB.

42 The consent of the user to be declared electronically, provided for by the defendant in the form of a General Terms and Conditions of Business, which permits the retrieval of information stored on the user's terminal device by means of cookies by way of a pre-set checkbox, constitutes - as required for a claim for injunctive relief based on the risk of repetition (see already para. 30) - an unreasonable disadvantage both under the law applicable at the time of the act complained of and under the law applicable at the time of the decision.

43 a) The assumption of the court of appeal that the challenged
The appeal rightly raises no objections to the fact that the declaration of consent by means of a pre-set checkbox is a general business condition within the meaning of § 305 (1) BGB.

44 b) Obtaining consent by means of a pre-set checkbox was, according to the legal situation applicable until 24 May 2018 - i.e. before the validity of Regulation (EU) 2016/679 - incompatible with essential basic ideas of Section 15 (3) sentence 1 of the German Telemedia Act (TMG) within the meaning of Section 307 (2) no. 1 of the German Civil Code (BGB).

45 aa) Pursuant to Section 15 (3) sentence 1 of the German Telemedia Act (TMG), the service provider may create user profiles using pseudonyms for the purposes of advertising, market research or for the needs-based design of telemedia, provided that the user does not object to this after being informed of his or her right to object.

46 The contested use of cookies by the defendant as a service provider serves, as required by Section 15 (3) sentence 1 TMG, to create user profiles for the purpose of advertising by recording the user's behaviour on the internet and using it to send tailored advertising. The randomly generated number (ID) stored in the cookies in the case in dispute, which is assigned to the user's registration data, is a pseudonym within the meaning of Section 15 (3) TMG. Pursuant to Section 3 (6a) BDSG in the version applicable until 24 May 2018, pseudonymisation is the replacement of the name and other identifying features by an identifier for the purpose of excluding or significantly complicating the identification of the data subject. By assigning a randomly generated number to the user's registration data, the user's identification by third parties - for example, by the operators of websites visited by the user who are designated as advertising partners of the defendant - is excluded or made significantly more difficult.

47 bb) Section 15 subsec. 3 sentence 1 TMG is to be interpreted in conformity with the Directive in view of Article 5 subsec. 3 sentence 1 of Directive 2002/58/EC as amended by Article 2 No. 5 of Directive 2009/136/EC to the effect that the consent of the user is required for the use of cookies for the creation of user profiles for the purposes of advertising or market research.

48 (1) According to the original version of Art. 5 para. 3 of the Directive
2002/58/EC, in the case of storage of information on the user's terminal equipment or access to information stored there, the service provider had not only to inform the user clearly and comprehensively, in particular about the purpose of the processing, but also to inform him of the right to refuse the processing. According to the recast of Art. 5(3) of Directive 2002/58/EC by Directive 2009/136/EC, Member States shall ensure that the storage of information or access to information already stored in the user's terminal equipment is only allowed if the user concerned has given his consent on the basis of clear and comprehensive information provided to him in accordance with Directive 95/46/EC - inter alia - on the purposes of the processing. The consent requirement does not preclude storage or access under the second sentence of Article 5(3) of Directive 2002/58/EC if the sole purpose is to carry out the transmission of communications over an electronic communications network or if storage or access is necessary to provide the user with the information society service he expressly requests.

49 The measures of storage or retrieval of information stored on the user's terminal equipment dealt with in Art. 5(3) of Directive 2002/58/EC are typically carried out with the help of cookies. Cookies are text files that the provider of a website stores on the user's computer and can retrieve when the website is called up again in order to facilitate navigation on the internet or transactions or to retrieve information about user behaviour (see BGH, GRUR 2018, 96 marginal no. 15 - Cookie consent I). In the case in dispute, the storage or retrieval of the information is not technically necessary within the meaning of the second sentence of Article 5(3) of Directive 2002/58/EC, but serves advertising purposes, so that the exception to the consent requirement does not apply.

50 (2) According to Article 2(h) of Directive 95/46/EC, to which Article 2(f) of Directive 2002/58/EC refers for the definition (also) of consent required under the first sentence of Article 5(3) of that Directive, consent shall mean any freely given specific and informed indication of his or her wishes by which the data subject signifies his or her agreement to personal data relating to him or her being processed.

51 The Court of Justice of the European Union, following a referral by the Senate, ruled that Article 2(f) and Article 5(3) of Directive 2002/58/EC, in conjunction with Article 2(h) of Directive 95/46/EC, must be interpreted as meaning that there is no valid consent within the meaning of those provisions if the storage of information or access to information already stored on the user's terminal equipment of a website is not possible. h of Directive 95/46/EC are to be interpreted as meaning that there is no effective consent within the meaning of those provisions if the storage of information or access to information already stored in the user's terminal equipment of a website is permitted by means of cookies by means of a pre-set checkbox which the user must deselect in order to refuse consent (ECJ, GRUR 2019, 1198 nos. 46 to 59 - Verbraucherzentrale Bundesverband/Planet49). The question of whether the information is personal data is irrelevant in this context (ECJ, GRUR 2019, 1198 nos. 68 to 71 - Verbraucherzentrale Bundesverband/Planet49).

52 (3) Accordingly, Section 15(3) sentence 1 TMG is to be interpreted in conformity with the Directive to the effect that the service provider may not use cookies to create user profiles for the purposes of advertising or market research if the user's consent is obtained by means of a pre-set checkbox which the user must deselect in order to refuse consent.

53 On the basis of the transposition requirement pursuant to Article 288 TFEU and the principle of loyalty to the Union pursuant to Article 4(3) TEU, the national courts are required to interpret national law as far as possible in accordance with the wording and purpose of the Directive, making full use of the margin of appreciation granted to them by national law, in order to achieve the objective pursued by the Directive. This principle of interpretation in conformity with the directive requires more from the national courts than mere interpretation within the wording of the law, but finds its limit only in the area in which judicial further development of the law in accordance with national methods is unacceptable.
is permissible. The principle of interpretation in conformity with the directive therefore also requires that national law, where necessary and possible, be developed in conformity with the directive by way of teleological reduction (see BGH, judgment of 26 November 2008 - VIII ZR 200/05, BGHZ 179, 27 para. 19 et seq.; decision of 16 April 2015 - I ZR 130/13, GRUR 2015, 705 marginal no. 26 = WRP 2015, 863 - Weihrauch-Extrakt-Kapseln; decision of 21 October 2015 - I ZR 51/12, GRUR 2016, 497 marginal no. 35 = WRP 2016, 707 - Davidoff Hot Water II).

54 The interpretation of Section 15 sub-section 3 sentence 1 TMG in conformity with the Directive is not
The fact that the German legislator has not yet adopted an act of transposition does not prevent this. It can be assumed that the legislator considered the existing legal situation in Germany to be in conformity with the Directive (cf. Moos, K&R 2012, 635 f.; Rauer/Ettig, ZD 2016, 423, 424; Schmidt/Babilon, K&R 2016,
86, 89; Working Document of the Communications Committee of the European Commission of 4 October 2011, COCOM11-20, p. 3 ff.). Legislative proposals of the Bundesrat and the SPD parliamentary group in the German Bundestag, which had the introduction of the consent requirement for cookies as their object (cf. BT-Drucks. 17/6756 and 17/8454), have not been realised. The Federal Government was obviously of the opinion that there was no need for change; the EU Commission did not object to this (cf. Rauer/Ettig, ZD 2015, 255, 256).

55 A corresponding interpretation in conformity with the Directive is still compatible with the wording of Section 15 (3) sentence 1 TMG. In view of the fact that the legislature saw the consent requirement under EU law implemented in Section 15 (3) sentence 1 TMG, the lack of (effective) consent can be seen as a contradiction to the permissibility of the creation of user profiles under this provision (cf. Schmitz in Spindler/Schmitz, Telemediengesetz, 2nd ed, § 15 marginal no. 96; also Hanloser, ZD 2019, 264, 266; Moos, K&R 2012, 635, 637 and K&R 2015, 220, 222).

56 (4) In the case in dispute, the consent of the user provided for in the challenged General Terms and Conditions of Business by means of a pre-set checkbox is not compatible with an essential basic idea of Section 15 (3) of the German Telemedia Act (TMG) determined by way of interpretation in conformity with the Directive.

57 c) This legal situation has not changed since 25 May 2018, the first day of application of Regulation (EU) 2016/679.

58 aa) Regulation (EU) 2016/679 does not affect the continued applicability of Section 15(3) sentence 1 of the German Telemedia Act (TMG) as a national provision transposing Article 5(3) sentence 1 of Directive 2002/58/EC.

59 (1) Article 95 of Regulation (EU) 2016/679 provides, as regards the relationship with Directive 2002/58/EC, that the Regulation shall not impose additional obligations on natural or legal persons in relation to processing in connection with the provision of publicly available electronic communications services in public communications networks in the Union, to the extent that they are subject to specific obligations laid down in the Directive which pursue the same objective. Art. 95 of Regulation (EU) 2016/679 regulates the delimitation of the scope of application of both legal acts in the event of a conflict, which only occurs when both legal acts contain competing obligations that pursue the same objective. In this case, according to Art. 95 of Regulation (EU) 2016/679, the provisions of the Directive take precedence (cf. Karg in Simitis/Hornung/Spiecker gen. Döhmann, Datenschutzrecht, Art. 95 DSGVO Rn. 1, 17; Klabunde/Selmayr in Ehmann/Selmayr, DSGVO, 2nd ed., Art. 95 Rn. 16). However, insofar as Directive 2002/58/EC goes beyond the scope of Regulation (EU) 2016/679, there is no speciality relationship in the absence of regulatory competition and the Directive (likewise) remains applicable (see Sydow, DSGVO, 2nd ed.
Aufl., Art. 95 Rn. 11).

60 (2) Thereafter, even under the application of Regulation (EU)
2016/679 on the applicability of Article 5(3) of Directive 2002/58/EC and Section 15(3) sentence 1 TMG, which transposes this provision.

61 Art. 5(3) of Directive 2002/58/EC does not concern the subject matter of Regulation (EU) 2016/679, according to its Art. 1(1) the processing of personal data, but the storage of or access to information stored in the user's terminal equipment. This difference in the scope of application has its reason in the different
protective purposes of the regulations concerned: While Regulation (EU) 2016/679, according to its Art. 1(2) and its Recitals 1 and 2, protects the fundamental rights and freedoms of natural persons and, in particular, their right to the protection of personal data guaranteed in Art. 8(1) of the EU Charter of Fundamental Rights, Art. 5(3) of Directive 2002/58/EC serves the purpose of protecting the right to the protection of personal data guaranteed in Art. 8(1) of the EU Charter of Fundamental Rights. 3 of Directive 2002/58/EC, as can be seen from its recitals 24 and 25 and recitals 65 and 66 of Directive 2009/136/EC amending that Directive, serves the protection of the privacy of users guaranteed by Article 8(1) of the European Convention on Human Rights and (in the meantime) by Article 7 of the EU Charter of Fundamental Rights. Art. 5(3) of Directive 2002/58/EC is intended to protect users against any interference with their privacy, irrespective of whether personal data or other data are involved (see ECJ, GRUR 2019, 1198, para. 68 f. - Verbraucherzentrale Bundesverband/Planet49).
Consequently, the provision of Art. 5(3) of Directive 2002/58/EC goes beyond the scope of Regulation (EU) 2016/679.

62 If the applicability of Article 5(3) of Directive 2002/58/EC is not affected by the application of Regulation (EU) 2016/679, the applicability of Section 15(3) sentence 1 of the German Telemedia Act (TMG), which implements this provision, remains unaffected. The primacy of application of the directive also extends to these provisions.
Directive (cf. [on Art. 95 GDPR] Schmitz in Spindler/Schmitz loc.cit., Pream. to § 11 to § 15a, paras. 11, 13 and § 13, para. 22 f.; Gola/Piltz, GDPR, 2nd ed., Art. 95, para. 15).

63 bb) Insofar as Art. 2(f) of Directive 2002/58/EC refers to Art. 2(h) of Directive 95/46/EC for the definition of consent, it must be noted that as a result of the repeal of Directive 95/46/EC by Regulation (EU) 2016/679, since 25 May 2018 the definition of consent must be based on the definition provided for in Art. 4(11) of Regulation (EU) 2016/679 (see para. 29).

64 However, this did not result in a change of law. Upon referral by the Senate, the Court of Justice of the European Union also ruled with regard to Art. 4 no. 11 and Art. 6 para. 1 lit. a of Regulation (EU) 2016/679 that there is no effective consent within the meaning of these provisions if the storage of information or access to information already stored in the user's terminal device of a website is permitted by means of cookies by means of a preset checkbox that the user must deselect in order to refuse his consent (ECJ, GRUR 2019, 1198 nos. 60 to 63 - Verbraucherzentrale Bundesverband/Planet49).

65 Thus, the request for injunction I 3 is well-founded, without the scope of the information provided by the defendant on the manner in which cookies are used being relevant to the decision (on this, see ECJ, GRUR 2019, 1198, nos. 72 to 81 - Verbraucherzentrale Bundesver-
band/Planet49). The Senate's question 2 on the scope of the information on the way cookies are used was only posed in the event that, according to the answers of the Court of Justice to the Senate's questions 1 a to c, the existence of an effective consent to the storage of or access to information by means of the use of cookies would have had to be assumed.

66 C. Accordingly, the defendant's appeal is to be dismissed with the proviso that the addition mentioned in the second paragraph of the operative part of the impugned judgment reads "(...) if this provision is used in connection with a list as reproduced in Annex K 1 to the application". On the plaintiff's appeal, the impugned judgement is to be set aside on the point of costs and insofar as it was found to the plaintiff's disadvantage with regard to the injunctive relief I 3. To the extent that it is set aside, the judgment of the Regional Court is to be restored. The decision on costs follows from § 92 (1) sentence 1, § 97 (1) ZPO.

Cook Spooner Schwonke
Feddersen Schmaltz

Lower courts:
Frankfurt am Main Regional Court, decision of 10.12.2014 - 2/6 O 30/14 -
OLG Frankfurt am Main, decision of 17.12.2015 - 6 U 30/15 -