The Croatian Presidency of the Council of the European Union ("Council") has published a progress report on the status of the proposed E-Privacy Regulation.
The Croatian Presidency's most recent draft of the E-Privacy Regulation introduced the concept of placing cookies and similar technologies on user's devices where this is necessary for purposes of legitimate interests.
In the Presidency's progress update, it summarised that the reaction from Member States has been mixed to these new proposals, with some not wanting to include a new ground based on legitimate interests, with others taking the view that the new proposals do not go far enough.
The Presidency also noted that a combination of reactions from Member States on the new proposals coupled with outbreak of the COVID-19 pandemic has meant that agreement within the Council on the draft text has not been achieved.
The Croatian Presidency will now work with the incoming German Presidency of the Council, to take the proposed E-Privacy Regulation forward.
This is the latest in the ongoing saga of the E-Privacy Regulation, which was first published in January 2017 and intended to come into force at the same time as the GDPR, on 25 May 2018.
For more information and background on the proposed E-Privacy Regulation, please see our article which first appeared in the July 2019 issue of PLC Magazine here.
9. Member States' first reactions to the introduced modifications, in particular to the introduction of legitimate interests ground, were rather mixed. A number of Member States would prefer not to include this new ground and would prefer to revert to the previous text with a closed list of permitted processing grounds. Others were positive about the new direction of the text trying to align it with the GDPR but warned about the need to keep the right balance between the rights and interests of end-users and those of providers. On the other hand, certain delegations could support going even further in aligning the text to the GDPR. Some also proposed to re-introduce some of the deleted processing grounds back in the text as they were not convinced that those would be adequately covered by legitimate interests, also taking into account all the related safeguards that need to be applied. Certain delegations asked for more clarity when it comes to information society services financed through advertising. 10. Despite the Presidency's best intentions, subsequent deliberations on the ePrivacy proposal in WP TELE were rendered impossible by the outbreak of the COVID-19 pandemic and the measures that had to be taken in this context. In addition, it was clear from the first Member States' reactions, as outlined in the previous paragraph, that further work would be needed on the file. The Croatian Presidency is therefore committed to work closely with the incoming German Presidency in June to facilitate further discussions and to ensure smooth progress on the file. 11. Due to the cancellation of the 5 June TTE Council in relation to the COVID-19 pandemic, the present progress report will be presented by the Presidency to the Permanent Representatives Committee on 3 June 2020 with the invitation to take note of it.