Is the UWG (German law against unfair competition) applicable in the case of the CleverConnect?

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The competition law aspect is explained by §7 UWG. The question arises as to the extent to which shared job offers require the prior consent of the recipient. First of all, the relevant UWG regulations do not apply to multi-point communication (e.g. sharing on social networks), but only to point-to-point communication via electronic mail. This usually includes communication by e-mail.
Within this point-to-point communication, it should be checked whether a job offer constitutes a business act, as only then is the UWG relevant. According to § 2a UWG, "business act" is any conduct by a person for the benefit of his own or another person's company before, during or after a business transaction which is objectively connected with the promotion of the sale or purchase of goods or services or with the conclusion or performance of a contract for goods or services; "goods" also includes real estate, "services" also includes rights and obligations.

In our view, the UWG is not applicable in the case of CleverConnect, since the CleverConnect customer is not intended to provide a service, but rather to offer the prospect of an employment relationship (or to apply for one).

Both the legal assessment by our law firm and years of practice have shown that the risk of a complaint by a referred employee is de facto non-existent: In our seven years of company history, there has not been a single case of a complaint in almost 500,000 referrals and in our cooperation with major companies such as Henkel, Otto or the Swiss Post. This is due to the fact that direct recommendations are usually made between people who know each other personally - which is also a central basis for the success of the employee referral principle. In extreme cases, it is also possible to deactivate individual referral channels (such as e-mail). However, we do not recommend this, as e-mail referrals in particular are a very popular channel and lead to valuable recommendations. Strictly obtaining consent prior to the delivery of a job share email would also require a separate pre-email, for which consent would also not be available and would severely limit the user experience of the referral system.

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