What is Existing-customer exception?
Advertising by electronic mail needs the recipient's prior consent in Germany and Austria alike. For customers there is an exception, colloquially called the existing-customer exception (Bestandskundenausnahme). In Germany it sits in section 7(3) UWG and has four conditions that must all be met together: the business received the address from the customer in connection with the sale of a product or service, it uses it only to advertise its own similar products or services, the customer has not objected to the use, and on collecting the address and on every use the customer is clearly told of the right to object, which costs only the transmission costs at basic rates.
In Austria, section 174(4) TKG 2021 regulates the exception with four conditions as well: the contact details come from the sale of a product or service to the customer, the advertising concerns the business's own similar products or services, the customer can refuse the use free of charge and without difficulty, and has not refused the mailing in advance, in particular not by registering on the Robinson list under section 7(2) of the E-Commerce Act. The difference from the German version lies mainly in this last condition.
The exception has limits that are often missed. "Similar" means offers that fit the earlier purchase, not any product of the business or offers of third parties. Neither law states how long someone remains a customer; how long a purchase may lie back is a matter of interpretation. Whoever objects may no longer have their data processed for direct marketing under Art. 21(3) GDPR. Calls follow their own rules. This is an assessment, not legal advice.
Why does Existing-customer exception matter?
Without the exception, every advertising email to people who have not consented would be unlawful, former customers included. With it, the approach is allowed, but only if all four conditions are met together and can be recorded in the customer database. Anyone automating win-back emails therefore builds the check in before sending: origin of the address, similar offer, no objection.
Existing-customer exception in practice
- 01A landscaping firm writes to a former pond customer about pond care in spring, with notice of the right to object in the email. Care is a similar service of its own, the address comes from the job.
- 02The same firm would like to offer the customer a partner's insurance policy. That is not an own similar offer, the exception does not carry here, consent is needed.
- 03A customer in Austria is on the Robinson list. They have thereby refused the mailing in advance, so the firm sends no advertising email, although they bought from it.
