In the Netherlands, the opt-in system has been in place in 13 cities since 2018. Most recently, a lawsuit brought by the Dutch associations of mail distributors and graphic arts companies against the city of Amsterdam, which was the first to introduce the opt-in system, was decided by the Dutch Supreme Court in favour of the defendant city of Amsterdam.
In the Netherlands, however, there is an exception for free advertising papers, provided that a certain proportion is editorialised. This is determined by the individual municipalities and generally ranges between 10 and 36 per cent. Only specially produced local news items count as editorial - leaflet inserts are not covered by the exemption and therefore cannot be inserted.
In Germany, too, Deutsche Umwelthilfe and the "Letzte Werbung" initiative have been calling for the introduction of this system for some time. The renowned law firm ADVANT Beiten has been commissioned by the BVDA to prepare a legal opinion to examine the admissibility of introducing a nationwide opt-in system. This has already been submitted to the association as a preliminary version. Although advertising journals as press products are currently exempt from the requirements, there is a risk that press products could become a kind of collateral damage of an opt-in regulation. Advertising journals would be hit hard by the impending loss of attractiveness of leaflets as an advertising channel for stationary retail.
The experts come to the conclusion that the introduction of an opt-in system is illegal in Germany. According to BVDA and ADVANT Beiten, the inadmissibility "results from the specific planned form of implementation in the Unfair Competition Act (UWG), which would violate Art. 4 of EU Directive 2005/29/EC on unfair commercial practices." Furthermore, the experts consider the opt-in regulation to be unconstitutional if the fundamental rights affected are weighed up. The BVDA and other affected associations have long been politically active under the umbrella of the Central Association of the German Advertising Industry (ZAW) to prevent the introduction of the opt-in system. The results of the report are therefore now being incorporated into the political work of the associations - the preliminary version of the legal opinion has already been submitted to the Federal Ministry of Justice and Consumer Protection (BMJV).
The BVDA and MEDIA Central are appealing: The commitment of publishers is also more important now than ever before. Raising awareness among delivery staff to observe existing opt-out stickers is essential to show that the tried and tested system still works.