The draft ePrivacy Regulation was proposed in January 2017 and remains on the agenda of the Council of the EU following two and a half years of intense discussions.
Progress on the file has, however, been limited. While the Council has considered ways to improve the text, too many important questions remain unaddressed and amendments continue to create more confusion than clarity.
The arrival of a new European Commission in November and European Parliament represents an opportunity for a fresh start in the debate, which can only happen if the proposal is fundamentally reassessed in light of the many outstanding concerns, the new legislative landscape and technology development.
Our associations represent interests as varied as ICT, automotive, medical technology, construction equipment, consumer electronics, home appliances, retail, banking and insurance, publishers and communications agencies. The current ePrivacy proposal has generated great uncertainty across all of these industries, whose efforts to comply with the General Data Protection Regulation (GDPR) risk being jeopardised by an incoherent ePrivacy text.
To date, there remain unanswered questions about the essential aspects of the proposal – its scope of application, its definitions, its inflexible legal bases and its relationship with the GDPR. The Council has endeavoured to address industry’s concerns in the various iterations of the text. Unfortunately, attempts to solve the substantive issues have fallen short absent a more profound reconsideration of the proposal.
Without a major overhaul of the text, Europe’s digital transformation will be severely hampered as a result of the legal uncertainty and rigidity brought about by the ePrivacy Regulation. Europe’s artificial intelligence ambitions will also be frustrated at a time when specific AI legislation is being considered.
Ahead of a major stocktaking exercise in 2020 on the application of the GDPR since it came into force in May of last year, this is an opportune time to reset the ePrivacy discussions and ensure certainty and consistency for both industry and consumers.
We therefore urge Member States to ask the European Commission to reconsider its proposal for an ePrivacy Regulation. We fully support the worthy objectives of the proposal, but only a fresh new attempt will serve the Regulation’s purpose in line with the principles of better regulation. We stand ready to support the Commission and the co-legislators in these efforts.
20th December 2021
13th January 2022