Interview: legal obligations in emails and business documents

We spoke to an expert about the consequences of incorrect or missing information in business documents and email signatures. In this interview with David Geßner (LL.M.), specialist lawyer for copyright and media law and for industrial property (German law), you will learn what to look for and what penalties can be imposed.

For whom does the email signature obligation apply and when must an email contain a signature?

As a result of the “Gesetz über das elektronische Handelsregister und Genossenschaftsregister sowie das Unternehmensregister” (EHUG) (english: law on electronic commercial registers and registers of cooperatives as well as the register of companies), which came into force in 2007, merchants and companies registered in the commercial register in Germany must include a notice with mandatory information in business letters in “whatever form”. Business letters in this sense are all outwardly directed written communications with business-related content, regardless of their specific form. Therefore, all mandatory information must also be included in business mails. It’s not sufficient to link to one’s own homepage or attach an electronic business card in the email. The necessary information must be directly visible in the email.

So it’s advisable to include the mandatory information in the email signature. Business-relatedness is defined broadly. Messages with largely personal content, such as birthday wishes to business partners, are also considered business emails. Internal correspondence between different departments, branches, etc. of a company, messages to an unspecified group of people and messages that are usually made on a form, such as delivery bills, shipping notifications, etc., are not business letters and therefore don’t have to contain any mandatory information in the email signature. However, it may also be mandatory to include the required information in such communications if they establish the first written contact between business partners.

»… all mandatory information must also be included in business mails. It’s not sufficient to link to one’s own homepage or attach an electronic business card in the email. «

What information must be included in any email signature and in any official business document?

The mandatory information depends on the legal form of the company. The email signature and all other business letters must contain all the information that also belongs in the mandatory notice. In the case of a registered trader, these are the full company name, the legal form, the place of the commercial establishment, the registration court, and the number under which the company is entered in the commercial register (§ 37a HGB).

Business emails of an offene Handelsgesellschaft (OHG) (English: general partnership) and a Kommanditgesellschaft (KG) (English: limited partnership) must contain the full company name, the legal form of the company, its registered office, the register court of the registered office and the number under which the company is registered in the Commercial Register (Sections 125a, 177a HGB).

Mandatory information for a Gesellschaft mit beschränkter Haftung (GmbH) (English: limited liability company) or Unternehmergesellschaft (UG) (English: entrepreneurial company) includes the complete company name, the legal form of the company, its registered office, the registration court of the company’s registered office, the number under which the company is entered in the commercial register, as well as all managing directors with their last names and at least one full first name (§ 35a GmbHG).

If the company has formed a supervisory board, the chairperson must also be named with their surname and at least one full first name.

There’s no obligation to state the company capital. However, if this is stated voluntarily, the share capital and the total amount of all outstanding contributions must be stated.

» The email signature and all other business letters must contain all the information that also belongs in the required notice. «

The email signature of a Aktiengesellschaft (AG) (English: stock corporation) must contain the complete company name, the legal form of the company, its registered office, the court of the registered office, the number under which the company is entered in the commercial register, as well as all members of the management board, the chairperson of the management board the chairperson of the supervisory board, each with surnames and at least one full first name (§ 80 AktG). As with a GmbH, the share capital may be stated voluntarily. In this case it must show the share capital and the total amount of all outstanding.

In the case of a Genossenschaft (Gen) (cooperative), mandatory information in the email signature includes the full company name, the legal form, the registered office of the cooperative, the registration court of the registered office, the number under which the cooperative is entered in the register of cooperatives, and all members of the board of directors, the chairperson of the board of directors, and the chairperson of the supervisory board, in each case with surnames and at least one full first name (§ 25a GenG).

It should be noted that the registered office of the company must always be a street address. A post office box is not sufficient.

For small businesses, such as sole proprietorships and Gesellschaften bürgerlichen Rechts (GbR) (partnerships under civil law), there are no mandatory details for the email signature. However, it’s recommended to include at least the full name of the owner or partners and a street address.

What could happen if this information is incorrect or missing completely? Are there any gradations of “wrong”?

The registry court may impose a penalty for faulty or missing information in the e-mail signature that fails to comply with the statutory requirements. This may even be the smallest error in the email signature. In this respect, there are no gradations of “wrong”. However, the penalty payment will be higher if important information is missing or there are many errors in the in the email signature, and lower if only minor information such as the first name of the managing director of a limited liability company is missing, for example.

There’s also the possibility of being admonished by competitors because of an infringement of competition. The likelihood of a complaint is all the greater the more mandatory information in the email signature contains errors or is missing completely.

How high is the penalty? What sums are we talking about here?

The amount of the penalty payment shall be at the discretion of the registry court. An individual penalty may not exceed €5,000. However, multiple assessments are possible. When determining the amount of a penalty payment, the registry court always decides on a case-by-case basis. As a rule, however, a first-time infringement will result in a lower penalty than repeated misconduct.

In addition, the size of the company is taken into account. Registered merchants generally are subject to a lower penalty payment than a GmbH or an AG. In most cases, the penalty is between €1,000 and €5,000.

Before the registration court can impose a penalty payment, it must first threaten to do so. This gives the company the option of having the fine set and enforcement of the penalty by correcting the email signature within the set deadline.

» The registry court may impose a penalty for faulty or missing information in the e-mail signature in order to comply with the statutory requirements. This may even be the smallest error in the email signature. «

A missing or incorrect email signature may constitute a violation of competition law in individual cases. In this case, there’s a threat of a warning from competing companies. As a rule, however, such infringements aren’t likely to harm the interests of competitors, consumers, or other market participants. This is the case if mandatory information is missing from a business email but the recipient nevertheless can determine the identity of the sender. A warning is then not justified.

A significant breach of competition arises if a company intentionally omits required mandatory information in an email signature in order to avoid claims under civil law. In individual cases, misleading statements may also be made, which may give rise to claims for damages. The amount of these claims depends on the individual case.

Is it true that there are law firms that only specialize in uncovering and prosecuting such cases?And do they prosecute such cases?
If so, how exactly do these law firms go about it? Are certain industries or company sizes particularly at risk?

There are some law firms that specialize in competition law warning letters. However, under the Act against Unfair Competition (UWG), only competitors, trade associations, consumer associations, and chambers of commerce and industry are entitled to assert competition law infringement claims. Law firms therefore only act on behalf of their clients.

Parties must first inform the customer of the missing or incorrect obligatory information in the email signature of the company against which a warning has been issued. At the same time, they’re requested to refrain from this breach of competition law in the future and to submit a cease-and-desist declaration with a penalty clause within a specified period of time. In addition, the warning party costs are usually claimed by those issuing the warning.

The risk of a warning by competitors will generally be highest in the case of larger companies that appear in public, since that’s where it’s easiest for competitors to identify a violation of competition. In that case, the corresponding contractual penalties and warning costs are higher.

However, for an infringement of mandatory information in an email signature to lead to a justified warning, there must also be other significant elements of unfairness. This will regularly not be the case, so a warning must always be examined by specialists.

If you are interested in a one-click solution to manage and update your email signatures across your organization, contact us!