Telecommunications Council: Will there be a new ePrivacy Proposal?


Today, at the Telecommunications Council meeting, the new Internal Market Commissioner, Thierry Breton, announced that the European Commission will present a revised ePrivacy proposal under the Croatian Presidency of the EU, after previous talks ended in a deadlock and failed to produce a preliminary agreement (general approach) among Member States. Following the meeting, at the press conference, Breton was slightly more nuanced, saying that “all options are open”. It thus remains unclear whether a new proposal will actually be presented.

Ecommerce Europe would welcome the launch of a new proposal on ePrivacy. It would be a positive outcome in line with the demands of Ecommerce Europe, which were reiterated in a joint industry letter at the beginning of October (see here).

The original Commission proposal was already published in January 2017 and the European Parliament’s Civil Liberties Committee adopted its report in October 2017. In contrast, in the Council, progress on the ePrivacy Regulation has been slow, with disagreements among Member States over issues going from the inclusion of provisions in the text to allow for the detection of child pornography, to consent requirements and rules for the tracking of online activity through the use of cookies. On 27 November, the Finnish Presidency of the Council published a Progress Report on the Proposal for a Regulation on ePrivacy after the Council’s COREPER rejected the latest compromise text of the proposal put forward by the Finnish Presidency. Therefore, the ePrivacy proposal was presented at the Telecommunications Council of the EU only in the form of a Progress Report and not as a General Approach.

These were the main highlights from the Council meeting of this morning:

  • Thierry Breton stated that the process would not start completely “from scratch” and that the work done so far on ePrivacy was not for nothing.
  • The European Commission plans to put a new proposal on the table for the next Croatian presidency. The proposal is supposed to match all Member States’ concerns and interests, because of the urgency to act in this field. Breton stressed that many are waiting for this reform to be completed and that a way forward must be found. He also stated that it should complement the GDPR.
  • Calls to rework and rethink the proposal had come from some Member States, including the Czech Republic, Portugal, Austria and France. They stated that it would be preferable to take up the debate again with a new legal draft. Countries also pointed out that the Regulation should be technologically neutral, future proof and clear in terms of its scope and measures.
  • Breton is confident that he can find common ground between Member States and he is ready to help find consensus among all parties.

Croatia, which joined the EU only in 2013, will likely find it challenging to find a consensus among Member States unless the Commission comes up with a new proposal that effectively reflects the several opinions of EU countries.