The Federal Labour Court has stripped the digital drop-in registered letter of its evidentiary force for proof of receipt. The core reasoning is not grounded in employment law but in the law on receipt and evidence — and it can therefore directly affect the sharpest out-of-court instrument in competition law: the cease-and-desist letter.
What It Is About: The BAG No Longer Recognises Prima Facie Evidence for the Drop-in Registered Letter
By its judgment of 7 May 2026 (Case No. 2 AZR 184/25), the Federal Labour Court dismissed the appeal on a point of law against the judgment of the Regional Labour Court (LAG) Hamburg of 14 July 2025 (Case No. 4 SLa 26/24) and thereby confirmed its restrictive approach. The key finding is this: Deutsche Post's digital drop-in registered letter does not establish prima facie evidence of receipt of a declaration — not even where, in addition to the dispatch receipt, the delivery receipt is also produced.
The decided case arose in an employment-law context. The dispute concerned a dismissal on grounds of illness. The evidential relevance in that context was the receipt of an invitation to a company integration management (BEM) procedure. The employer produced the dispatch receipt, tracking information, and delivery receipt, and named the delivery person as a witness. That person, however, had no recollection of the specific delivery.
For competition-law practice this is of considerable significance, because the drop-in registered letter is the standard means of sending cease-and-desist letters. Since receipt of such letters is governed by the same rules (§ 130 German Civil Code (BGB) by analogy) and the delivery receipt is unsuitable regardless of the contents of the item, the same evidential weakness applies here. The consequences affect both sides: the sender of the cease-and-desist letter in relation to the recovery of costs (§ 13 para. 3 UWG, § 93 ZPO), and conversely the recipient with a corresponding line of defence.
One caveat remains: the written grounds of the BAG judgment are not yet available. The direction is nonetheless unambiguous.
Excursus: The Concepts of Receipt, Burden of Proof, and Prima Facie Evidence
Receipt often determines the validity of a declaration and the commencement or preservation of time limits. In practical terms, receipt means: the declaration must enter the addressee's sphere of control in such a way that, under normal circumstances, cognisance of it can be expected. Actual reading is generally not required for this purpose.
If receipt cannot be proved, the declaration may be treated in law as if it had not arrived, or had not arrived in time. This may determine, for example, the validity of a dismissal — as in the present case — or the expiry of a payment deadline, the commencement of default, the termination of a contract, withdrawal, avoidance, or compliance with a preclusive time limit.
This is because a party who asserts a fact favourable to itself in proceedings must, as a general rule, prove it — the so-called burden of proof. In matters of receipt, that burden typically falls on the sender, or on whoever relies on the validity or timeliness of the declaration. Prima facie evidence is a relaxation of that burden. It applies where a typical sequence of events is established that, on the basis of common experience, permits an inference of a particular outcome. The sender need not necessarily prove receipt "directly" if a typical, documented delivery process supports an inference of receipt.
The Legal Core: Receipt under § 130 BGB and Prima Facie Evidence
The Previous Position
For many years the drop-in registered letter was regarded as a practicable method of delivery with a calculable evidential value. According to the case law of the German Federal Court of Justice (BGH), the precondition was the former analogue procedure: immediately before dropping in the item, the delivery person peeled the so-called peel-off label from the item, affixed it to the delivery receipt, and confirmed the delivery with a signature and date (BGH, judgment of 27 September 2016 – II ZR 299/15). This was confirmed and continued by BGH, judgment of 11 May 2023 – V ZR 203/22, which rests on the same procedural precondition (dispatch receipt plus reproduction of the delivery receipt).
On that basis, the BAG had, by its judgment of 20 June 2024 (2 AZR 213/23), in principle affirmed prima facie evidence where a proper delivery receipt was available. By its judgment of 30 January 2025 (2 AZR 68/24) it then made clear that the mere production of the dispatch receipt together with an online-retrievable tracking status does not suffice. Whether the new digital procedure could at all support prima facie evidence was at that point expressly left open — that question has now been answered.
Why the Digital Procedure No Longer Suffices
The decisive factor is the change in the delivery procedure. Today the delivery person scans the item, acknowledges receipt on a display, and then drops the letter in. The date is recorded automatically. The Regional Labour Court (LAG) Hamburg had already identified four weaknesses in this process that preclude a typical sequence of events and thus prima facie evidence:
- The digital delivery receipt records neither the specific recipient address nor the time of the drop-in.
- The scanning of the barcode is — unlike the former peeling off of the peel-off label — possible even while the delivery person is holding further items, which increases the risk of incorrect delivery.
- The delivery is acknowledged before the letter has actually entered the letter box.
- The receipt does not distinguish between whether the item was dropped in or personally handed over.
The BAG dismissed the appeal against this assessment and thereby confirmed, in its outcome, the approach of the Regional Labour Court (LAG) Hamburg. Whether it fully adopts the four considerations as its own will, however, only emerge from the written grounds of judgment, which are still outstanding (as at 25 June 2026, not yet published).
This does not alter the critical determination: since the question of receipt under § 130 BGB and the general law of evidence is what decides the matter, the reasoning is not confined to employment law.
Why the Decision Reaches Competition Law
The key lies in the scope of the ratio. A cease-and-desist letter under competition law is treated as a quasi-legal act and is accordingly governed by §§ 130 et seq. BGB by analogy. Receipt follows the same rules.
What was denied is prima facie evidence of receipt — a question of general civil and evidence law, not a special question of employment law. The factual finding on which the decision rests is entirely independent of the contents of the item: Deutsche Post's delivery procedure is the same regardless of whether the envelope contains a dismissal or a cease-and-desist letter under competition law.
One qualification must be noted — and it sharpens the risk rather than mitigating it: the BAG judgment does not bind the Regional Courts and Higher Regional Courts with jurisdiction over UWG disputes. The transposition is not a question of res judicata but of persuasion. Yet it is precisely in this that the uncertainty for the sender of a cease-and-desist letter lies: anyone who today relies on the drop-in registered letter can no longer count on a civil court still granting prima facie evidence. And the argumentative basis for transposing the ruling is robust — the original peel-off prima facie evidence came from the BGH itself, and the civil courts are confronted with the same empirical finding. The fact that the written grounds of judgment are still outstanding provides no reassurance: as long as they are absent, there is even less of a reliable basis for assuming that receipt can still be securely established by a drop-in registered letter. Those who wait bear the risk — not the other side.
Consequence 1: The Cease-and-Desist Letter
The burden of proving receipt of a cease-and-desist letter falls on whoever relies on it — that is, the party sending it. If prima facie evidence is no longer available, only full proof remains. It is precisely this that the drop-in registered letter may, under the BAG's new approach, no longer be able to provide.
Concrete legal consequences follow from this. The deadline set in the cease-and-desist letter for the submission of a cease-and-desist declaration under penalty only begins to run upon receipt. If receipt cannot be proved, the deadline has never begun to run — the consequences attached to its expiry do not arise.
There is also the claim for reimbursement of costs: the claim under § 13 para. 3 UWG presupposes a legitimate cease-and-desist letter that gave the other party the opportunity for out-of-court resolution of the dispute. A cease-and-desist letter that was never received does not give rise to any claim for reimbursement.
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By the same token, this creates a line of defence for the recipient. For the recipient of a cease-and-desist letter, a bare denial of receipt becomes a serious argument — both against the claim for reimbursement of costs and against the assumption that an opportunity to respond was given to it before proceedings were commenced. The contribution of proof of receipt thus lies on both sides of the instruction.
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Consequence 2: Interim Injunction Proceedings
In proceedings for an interim injunction, the risk shifts from the merits of the claim to the question of costs. If the respondent credibly asserts that it did not receive the cease-and-desist letter and immediately acknowledges the claim, there is no cause for making the application. The consequence is governed by § 93 ZPO: the costs fall on the applicant — notwithstanding success on the merits. Anyone who proceeds without reliable proof of receipt may win the dispute and yet bear the costs.
A common misunderstanding should be avoided at this point: the presumption of urgency under § 12 para. 1 UWG is linked to the applicant's knowledge of the infringement, not to receipt of the cease-and-desist letter. Proof of receipt that cannot be established therefore scarcely endangers urgency — a cease-and-desist letter is not in any event mandatory before making an application for an interim injunction. The lever of the drop-in registered letter in interim injunction proceedings is therefore not urgency, but the costs risk arising from § 93 ZPO.
Conclusion
The decision formally concerns employment law but rests on an evidentiary question of general civil law. Anyone who sends a time-limited cease-and-desist letter by drop-in registered letter encounters the same delivery process that the labour courts consider inadequate — with immediate consequences for the running of time limits, the claim for reimbursement of costs under § 13 para. 3 UWG, and the costs risk arising from § 93 ZPO. Those who are on the offensive should secure proof of receipt; those who have received a cease-and-desist letter should examine it.
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