Who: German and Croatian Presidency of the Council of the EU
Where: European Union, United Kingdom
When: 6 July 2020
Law stated as at: 16 July 2020
What happened:
On 1 July 2020, Germany took over the Presidency of the Council of the European Union from Croatia. The German Presidency published a discussion paper in relation to the proposed ePrivacy Regulation on 6 July 2020, which uses the Croatian Presidency’s latest compromise proposal from 6 March 2020 as a basis.
Previously, on 3 June 2020, the Croatian Presidency had published a progress report on the ePrivacy Regulation, confirming the amendments made in its proposal of 6 March 2020 to further align certain provisions with the General Data Protection Regulation (GDPR), and reporting on the opinions of member states regarding such amendments. The key sticking point was the introduction of the ground of legitimate interests to process electronic communications metadata (Article 6(b)), and to collect information from end-users’ terminals (Article 8). While some member states were in favour of the introduction of the legitimate interests ground, several member states did not want the ground to be included at all, and others were concerned about the correct balance being struck between the rights and interests of end users and those of providers.
The German Presidency believes that agreeing on a General Approach is possible, subject to agreement being reached on two key points: the rules for the processing of electronic communications data in Articles 6 to 6d and for the protection of end users’ terminal equipment information in Article 8.
Why this matters:
The ePrivacy Regulation seeks to address the diversity of ePrivacy laws across the EU, and was originally due to come into force at the same time as the GDPR. However, it is now expected to be directly applicable in member states no earlier than 2023, by which time the UK-EU transition period will (almost certainly) have ended.
The Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) will continue to apply in the UK after the end of the transition period, and it remains to be seen whether or not the UK will decide to reflect the ePrivacy Regulation in its national laws.
