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EU: e-Privacy Regulation: Council Presidency aims for consensus with amended text

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06 January 2021

Four years after the European Commission published its proposal for the e-Privacy Regulation, member states are still unable to agree on a position for negotiations with the European Parliament. The latest attempt to reach a consensus comes from the Portuguese Presidency of the Council (in post from January-June this year), which has circulated a document to member states in which it is "proposing to simplify the text and to further align it with the GDPR. "

The tardiness of the member states has been a source of frustration for civil society organisations and privacy activists. In October 2019, EDRi and four other groups underlined the "urgent need for a strong ePrivacy Regulation in order to tackle the problems created by the commercial surveillance business models," and condemned the fact that:

"the Member States, represented in the Council of the European Union, still have not made decisive progress, more than two and a half years since the Commission presented the proposal."

On 10 January, it will be exactly four years since the proposal was published. It remains to be seen whether the efforts of the Portuguese Presidency will bring the member states closer to an agreement - and, crucially, how any such agreement will be received by privacy and human rights activists.

The Portuguese Presidency's new text: Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications) (5008/21, LIMITE, 5 January 2021, pdf):

1. 1. In view of the WP TELE meeting on 7 January, Delegations will find in Annex I. the Presidency proposal of the ePrivacy Regulation.
   2. The Presidency aims to conduct swift discussions with Member States, intending to jointly discuss articles and the relevant recitals.
   3. During the recent discussions in the WP TELE, it has became clear that the majority of Delegations could not support the text as it stood in doc. 9931/20. A number of them expressed their wish for more substantial changes in the proposal.
   4. Based on those discussions and after a period of reflection on this topic, the Presidency is proposing to simplify the text and to further align it with the GDPR.
   5. The Presidency aimed to set a balance between the high-level protection of the fundamental rights to private life and protection of personal data on electronic communications, ensuring free movement of electronic communications data and services, while fostering the development of new technologies and innovation.
   6. Furthermore, the Presidency also introduced, as much as possible, modifications to ensure GDPR consistency and legal certainty for users and businesses as set in the Commission´s Proposal of 10 January 2017.
   7. The introduced amendments reflect the lex specialis relation of ePrivacy to the GDPR. As such, every principle of the latter shall apply, namely the accountability principle, under which the provider of an electronic communications service should be responsible for and be able to demonstrate compliance.
   8. The most important amendment is the possibility to process electronic communications metadata (Article 6c and Recital 17aa) and to use processing and storage capabilities of terminal equipment and the collection of information from end-user’s terminal (Article 8 (1) (g)) for further compatible processing, fully aligned with Articles 5 (1) (b) and 6 (4) of GDPR (further compatible processing).
   9. To fully align with GDPR drafting “technique” and “better regulation” principles on drafting Articles and correspondent Recitals, a few recitals and articles were restructured in new recitals or new article numbers (without changes), in order to provide clarification for each issue dealt with, e.g., Recital (8) has been divided in Recitals (8) (subject matters), (8aaa) (Territorial scope) and (8aa) (third party security service providers). These parts are contained in Part II of this Note.
   10. Changes, underlined and marked in bold, are listed below. For the purposes herein, the Presidency adopted the structure and the text organization of doc. 9931/20 of 4 November of 2020, of the German Presidency.
   11. The amendments introduced by the present document are detailed in Part III of this Note. They represent changes as compared to documents issued by the Finnish Presidency on 18 November 2020 (doc. 14068/19), taking in consideration some changes made by the Croatian (doc. 6543/20) and the German (doc. 9931/20) Presidencies. A summary of the amendments can be found in Annex II.