The German legislator has clarified that the mandatory information to be supplied in business letters by sole proprietors, commercial partnerships and companies must also be included in business emails. Business entities must comply with these requirements immediately to avoid having to deal with cease-and-desist letters (Abmahnungen).

The Act on Electronic Commercial Registers and Company Registers (Gesetz über elektronische Handelsregister und Genossenschaftsregister sowie das Unternehmensregister, (EHUG)), dated 10 November 2006, has clarified mandatory information requirements in business emails. The mandatory information required by sections 37a, 125a and 177a of the German Commercial Code (HGB), section 80 of the German Stock Corporation Act (AktG), section 35a of the German Limited Liability Company Act (GmbHG) and section 25a of the German Act on Mutual Societies (GenG) must be provided in every form of business correspondence with effect from 1 January 2007.

Scope of application of the publicity requirements

The term ‘business letters’ covers all external written messages regarding business matters, eg messages to business partners, clients and authorities. As an existing business relationship is not a pre-condition, the mandatory information must also be included in messages aimed at a single contact. The scope of application covers not only invoices, offers, order and inquiry confirmations, order and delivery notes and receipts, but also any other business correspondence via email. The publicity requirements must be met even when corresponding with allied companies. Only internal messages, eg between separate departments or offices or with branch offices, remain unaffected.

The law provides for an exception for messages that are not addressed to a specific recipient. Therefore, certain printed messages, such as bulk mail or ads and customer newsletters are exempt from the publicity requirements. Whether this exception can also be applied to email communication remains unclear. As every recipient of an email is specified, it would be advisable to observe the publicity requirements in any case – even when sending a business newsletter by email.

Implementation of the publicity requirements in email correspondence

Every business email, including replies or emails that are merely being forwarded, must provide the mandatory information. It must be included in the email itself; a link to the website information of the company is not sufficient. It is not advisable to attach a v-card or an attachment containing the mandatory information, as the recipient may not be able to open or read the attachment for technical reasons. Business entities should not use HTML code, as some email programmes may not be compatible.

To ensure that the mandatory information is not mistakenly omitted, the email programme should be preset to automatically add this information at the end of each external email, similarly to the frequently used disclaimers. If this is not possible, as particular employees may work for different companies, the employees must, as the case arises, insert their respective ‘signatures’ in any external email. The relevant employees must be instructed and trained to observe the publicity requirements.

Consequences of a breach of publicity requirements

The competent registry court may impose a penalty of up to €5,000 if the publicity requirements are not observed. A competitor might react with a cease-and-desist letter (Abmahnung) for the violation of non-competition provisions. However, such a letter would have only a remote chance of success. The requirement of mandatory information in business correspondence is a regulation of market behaviour in the interest of the market participants, as it provides important information to the business partners and enables them to obtain information from the registry court. However, a violation of non-competition provisions under section 3 of the German Act on Unfair Competition (UWG) requires more than just a ‘minor distortion of competition’. A violation of the publicity requirements would not typically cause a relevant ‘distortion of competition’. From a civil law perspective, violation of the publicity requirements does not result in the released statement becoming null or void, as these requirements are considered to be mere regulatory provisions.

Risk of misuse of cease-and-desist letters

So far, the regulations for mandatory information in business emails have received little attention. However, media coverage of this issue has already prompted dubious ‘cease-and-desist letter experts’ to expand into this area. Persons or business entities affected by the publicity requirements should take measures to ensure an appropriate layout of their business email correspondence, to eliminate a priori any risk of onerous cease-and-desist procedures.

Overview of the mandatory information

The EHUG has merely extended the scope of the existing publicity requirements but has not changed their content. The information required remains the same as for printed business letters.

Sole proprietor – Einzelkaufmann (section 37a HGB)

  • Name of business and legal form.
  • Location of the commercial branch.
  • Competent registry court and commercial register number.

Commercial partnership – OHG/KG (section 125a HGB, section 177a HGB, section 80 AktG, section 35a GmbHG)

  • Name of partnership and legal form.
  • Location of the commercial branch.
  • Competent registry court and commercial register number. Additionally for partnerships where no shareholder is a natural person, a partnership or a limited liability partnership (with a natural person as personally liable shareholder): the company name of the personally liable shareholder(s) and the respective mandatory information for the limited liability company or the stock corporation.

Limited liability company – GmbH (section 35a GmbHG)

  • Name of company and legal form.
  • Registered office of the company.
  • Competent registry court and commercial register number.
  • All managing directors and their deputies – surname and at least one first name.
  • If applicable, chairman of the supervisory board – surname and at least one first name.

Stock corporation – AG (section 80 AktG)

  • Name of company and legal form.
  • Registered office of the company.
  • Competent registry court and commercial register number.
  • All members of the management board and their deputies,
  • specifying the chairman – surname and at least one first name.
  • Chairman of the supervisory board – surname and at least one first name.

German branches of foreign limited liability companies or stock corporations – Zweigniederlassungen ausländischer Gesellschaften (sections 35a para 4 GmbHG, 80 para 4 AktG)

  • Competent registry court and commercial register number of the German branch.
  • The respective mandatory information for the foreign limited liability company or stock corporation as set out above, provided the applicable foreign legislation does not require any deviations.