Newsletters without consent: ECJ provides clarity for online retailers – end of double opt-in fears?

ECJ bombshell: Why the newsletter ruling puts Amazon sellers at a disadvantage – The hidden power shift in digital retail

The European Court of Justice's ruling of November 13, 2025, is often portrayed in public debate as merely a simplification for newsletter distribution. However, such a superficial interpretation overlooks the deeper economic realities of the current e-commerce ecosystem. This ruling represents nothing less than a confirmation of a power asymmetry that has formed the foundation of the digital commerce landscape for years: control over customer data has become the decisive competitive factor. Whoever possesses this data has direct access to customers. Whoever lacks this access is structurally disadvantaged.

With this decision, the court has implicitly recognized that the ability to directly manage customer relationships is a fundamental economic value. The ruling thus legitimizes an existing power structure that has long shaped the German and European retail landscape. It is a decision that consolidates rather than reforms.

Overcoming the architecture of legal uncertainty

Prior to the ruling, legal uncertainty burdened German small and medium-sized enterprises (SMEs). The interpretation of Section 7, Paragraph 3 of the German Unfair Competition Act (UWG) was historically controversial. While some law professors and courts argued that even free registration could be considered a "sale," others took the more restrictive position that an actual purchase was required. This vagueness led many companies to proactively implement the double opt-in procedure, even though it was not mandatory. They chose the more conservative strategy to avoid fines.

The European Court of Justice (ECJ) has resolved this uncertainty. The court clarified that free registration or the use of free services does indeed constitute a sufficient legal basis for subsequent newsletter distribution. At the same time, the ruling emphasized that Section 7(3) of the German Unfair Competition Act (UWG) is a more specific regulation than the GDPR. Specifically, this means that anyone who meets these conditions does not require additional data protection consent under the General Data Protection Regulation (GDPR).

This clarification eliminates an unnecessary layer of complexity. Companies no longer have to comply with two legal regimes simultaneously, but can concentrate on the specialized regulations of the Unfair Competition Act (UWG). At the same time, this clarification also creates opportunities for aggressive market participants who previously acted more restrictively as a precaution.

The economic reality: Newsletters as profitability multipliers

The economic implications of this ruling are driven by the empirical realities of email marketing. The data is consistent and compelling: every euro invested in email marketing generates an average of 38 to 42 euros in revenue. This is a return on investment that no other marketing channel regularly achieves. Self-media advertising, affiliate marketing, and traditional display advertising cannot compete with these figures.

This high profitability is rooted in the fundamental nature of email marketing. Unlike social media or search engine marketing, the newsletter sender has direct access to the customer. The email address is a communication channel that is not filtered by algorithms, is not dependent on third-party cookies, and is not subject to the whims of social networks. This is media ownership in the classic sense, digitized. A newsletter subscriber is an asset over which the company exercises complete editorial and commercial control.

For independent retailers with their own online shops, the ECJ ruling offers concrete efficiency gains. Registering in the shop to store delivery addresses or payment methods can now be considered a sufficient legal basis for newsletter marketing. This reduces the complexity of customer acquisition. Instead of having to run separate opt-in campaigns, email lists can be built from the regular registration process. For small and medium-sized retailers with limited marketing budgets, this translates into significant cost savings.

At the same time, the ruling addresses a key asymmetry: those who possess customer data can use it productively; those who do not possess it cannot. This asymmetry is not a flaw or a side effect of modern e-commerce; it is the core of the modern e-commerce model. The ruling has unquestioningly confirmed this.

Segmenting the winners and losers

Taking this economic logic into account, the segmentation of market participants becomes clear. The ruling creates immediate winners and structural losers.

The immediate winners are owner-operated online shops and medium-sized e-commerce companies. These businesses have direct customer relationships. Their customers register on their websites, provide their email addresses, and create user accounts. With this new ruling, these companies can use their existing customer data more productively. The barrier between "customer has registered" and "customer receives marketing communications" has been lowered. This means lower costs per marketing contact and a higher likelihood that registered customers will actually receive newsletters. In practice, for an online fashion shop, this could mean an immediate reduction in costs per marketing contact of potentially 20 to 30 percent compared to before, if double opt-in processes can be simplified.

The losers are a more nuanced case. They are not primarily the customers or consumers, but rather those market participants who have based their economic position on data asymmetry. Amazon, eBay, and Otto are the central marketplace operators in Germany. These platforms maintain customer relationships. Buyers register on these marketplaces, not on the websites of individual sellers. This means that Amazon, eBay, and Otto control the valuable customer data, not the individual sellers.

The European Court of Justice (ECJ) did not create this power imbalance with its ruling. But the ruling confirmed and legitimized it. The platforms have absolutely no interest in releasing this valuable customer data to sellers. They systematically block contact between seller and customer. A seller on the Amazon Marketplace cannot send direct emails to buyers to inform them about new products. Amazon explicitly prohibits this. Access to the customer's email address is effectively forbidden. The ruling does not change this. Nor can it, since it only interprets national competition law, not the terms and conditions of private platforms.

The intensification of market concentration

This dynamic leads to an inevitable intensification of the already existing market concentration. Amazon controls approximately 50 percent of the German marketplace volume. eBay follows with about 15 percent market share, and Otto with about 10 percent. This means that roughly 75 percent of the marketplace volume is controlled by three players. Within these marketplaces, there are thousands of individual sellers, most of whom do not have direct customer access.

The ECJ ruling indirectly reinforces this trend. It motivates retailers to collect customer data on their own websites. Those operating on marketplaces do not benefit from the ruling. This creates a strong incentive for retailers to vertically integrate their channels, moving away from marketplaces and towards their own direct-to-consumer channels. This is a rational strategic response. However, it also exacerbates the asymmetry between established brands with existing customer bases and new market entrants. Large, established retailers can directly leverage their existing customer networks. New and smaller providers still need to build their customer base. The ruling structurally favors the existing order.

Business-to-business (B2B) trading platforms have become a critical part of global trade dynamics and thus a driving force for exports and global economic development. These platforms offer significant benefits to companies of all sizes, particularly SMEs – small and medium-sized businesses – which are often considered the backbone of the German economy. In a world where digital technologies are becoming increasingly prominent, the ability to adapt and integrate is crucial to success in global competition.

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The international implications and the European position

The ruling comes from a European court and is directly applicable only within European territory. However, it signals a stance that is significant for future European data policy. Historically, European regulatory logic since the introduction of the GDPR has been protectionist with regard to personal data. The GDPR was an attempt to protect European citizens from the data hunger of American technology companies. It was also an attempt to secure greater control over their data for European companies.

The ECJ ruling of November 2025 signals a shift: the focus is no longer on maximum data protection restrictions, but rather on the ability of companies to efficiently use the data they acquire. This perspective improves the profitability of European e-commerce, but also asymmetrically. It improves the profitability of those companies that already possess customer data. It does not improve the profitability of those that do not.

From a geo-economic perspective, this means that the ruling takes a European regulatory path that disadvantages American tech giants like Amazon (which are also bound by the European GDPR), but simultaneously strengthens European retailers. This could be interpreted as a protectionist measure, not in the sense of punitive tariffs, but in the sense of better conditions for European competitors. In reality, however, it is more of a shift in the European self-image: from maximum data protection to pragmatic data protection that enables economic efficiency.

The reality of Customer Lifetime Value

The economic power of email marketing ultimately stems from the concept of Customer Lifetime Value (CLV). This metric calculates the total profit a customer generates for a company over the entire duration of the business relationship. For an average e-commerce shop with an average order value of €80 and approximately four purchases per year, and an average customer retention period of three years, the CLV is roughly €480, minus costs.

This is a fundamental metric for profitability. If a customer makes a one-time purchase and then disappears, acquisition is costly and the business model is fragile. Conversely, if a customer makes repeated purchases and generates consistently high cumulative value for the company over several years, acquisition becomes sustainable and overall profitability remains stable. Email marketing is one of the most powerful tools for achieving these repeat purchases because it significantly increases the customer retention rate. A well-executed newsletter series can reactivate existing customers, raise awareness of new products, and increase the average frequency of repeat purchases.

The ECJ ruling allows retailers to streamline this process. The path from initial purchase to newsletter subscription is simplified. This directly means that more potential repeat customers will actually be registered as newsletter subscribers. Converting new customers into loyal customers becomes more likely.

The asymmetric distribution of profits

Herein lies a significant asymmetry. The benefits from this ruling are not evenly distributed. Large, established retailers with existing customer bases benefit immediately. They can leverage their existing customer data more productively. A large shoe retailer with a million newsletter subscribers can utilize this list even more effectively. The marginal gains from these new customer access freedoms are likely less than 5 percent additional revenue for them.

Small and newly established retailers without existing customer bases benefit less immediately. They have to collect new customer data. The ruling doesn't make this easier; it only makes it easier to use that data once it's collected. The structural advantage for new market entrants remains.

The ruling does not change the fact that marketplace sellers, such as Amazon sellers, do not have access to customer data. They are stuck in the same trap as before. They can sell their products on the marketplace, but they cannot directly manage the customer relationship. This is explicitly prohibited by the marketplaces' terms and conditions.

The implications for the direct-to-consumer model

However, the ruling reinforces a strategic incentive system that was already implicit in European data policy: the incentive for vertical integration. Retailers are encouraged to segment their channels. They should establish direct access to customer data by managing customers on their own websites, mobile apps, or other owned channels. This is a direct-to-consumer model. Amazon and other marketplaces are trying to prevent this vertical integration, but the regulation creates strong incentives to support it.

This is a subtle shift in market logic. It means that, in the medium term, retailers who build successful direct-to-consumer channels will gain an economic advantage over pure marketplace sellers. This is particularly true for the fashion and lifestyle industry, where direct-to-consumer models are already gaining significant traction. Brands like Zalando have recognized this and are building their platform as a quasi-marketplace, while still retaining more control over customer data than Amazon sellers.

The reality of competition under conditions of data asymmetry

This leads to an uncomfortable reality: The ECJ ruling is pragmatic and economically sound. It reduces regulatory friction and enables more economical marketing practices. At the same time, it exacerbates structural imbalances that already exist in the market. It is a decision that does not democratize the existing distribution of power, but rather consolidates it.

Marketplace sellers are not strengthened. Small market participants without existing customer bases are not proportionally strengthened. New market participants without access to customer data are not strengthened. The beneficiaries are the existing, established retailers and brand companies that already have customer bases. This is the reality of modern e-commerce under conditions of data asymmetry.

The longer-term economic dimension

In the longer term, this ruling will accelerate existing trends. E-commerce markets will become more segmented between players with direct customer access and those without. The profitability of these two models will diverge. Direct-to-consumer models will become more profitable, while marketplace seller models will become less so due to weaker customer loyalty. This will lead to a further centralization of e-commerce among a smaller number of large, integrated players who control their own vertical channels.

This is ultimately the economic paradox of European data policy. It was introduced with the GDPR to reduce the power imbalance between companies and citizens. However, its implementation has led to an increase in the power imbalance between large, established players and small, new market entrants. The ECJ ruling exacerbates this effect.

Pragmatism instead of reform

The European Court of Justice ruling of November 13, 2025, on newsletter advertising without consent is a pragmatic judgment. It reduces regulatory friction, enables more efficient marketing practices, and brings clarity to an area previously plagued by uncertainty. For retailers with existing customer bases, it is a real benefit, lowering their marketing costs and increasing their efficiency.

At the same time, this ruling fails to address any of the structural problems of modern e-commerce. Instead, it exacerbates existing asymmetries. Those who possess customer data gain the advantage. Those without customer data remain at a disadvantage. Marketplace sellers without direct customer access do not benefit. New market entrants without existing customer bases do not benefit. The vast majority of retailers in Germany who sell on marketplaces do not benefit.

The ruling thus exemplifies the pragmatic European regulatory approach of the present day: optimizing the existing order rather than reforming it. This is economically rational as long as profit maximization is the goal. However, it is also politically significant because it means that the central power imbalances of modern e-commerce are not corrected by European jurisprudence, but rather legitimized.

The economic winners of this ruling are therefore clear: large, established retailers and brand companies with existing customer bases. The losers are diffuse, but measurable: marketplace sellers, new market entrants, and small market participants without direct customer access. This is the economic

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