The EDPB passes new guidelines on the technical scope of Article 5(3)

ePrivacy news: the EDPB’s Guidelines on the technical scope of Art. 5(3) of the ePrivacy Directive were voted with *all* members of the European Data Protection Board present. The Minutes of the EDPB’s meeting of 7 and 8 October 2024 say the following:

“The EDPB members adopted the Revised Guidelines 2/2023 on the Technical Scope of Art. 5(3) of ePrivacy Directive. 25 EU members of the EDPB voted in favour of adopting the revised guidelines and 2 EU members abstained. 2 EEA members of the EU were in favour of adoption and 1 EEA member abstained.

Of the two abstentions, we can also assume that (at least) one of them is from an EU Member State where national legislation gives jurisdiction over Art. 5(3) of the ePrivacy Directive to another authority (Finland [Traficom]? Netherlands [ACM]?), given the content of the Minutes.

On that topic of jurisdiction, the Minutes reveal that the lead rapporteur had explained that “Article 15(3) of the ePrivacy Directive gives a very clear authority on this matter to the WP29 and therefore to the EDPB, and that SAs were asked to carry out an analysis of their competence and collect feedback from other competent regulators”. As readers may be aware, I believe this justification to be shakier than the EDPB assumes (see https://lnkd.in/ekdviZ_K ) – but honestly I never expected the EDPB to question its own authority (just like they don’t seem to systematically question the assumptions underlying many of their GDPR and data protection Opinions and Guidelines).

I do find it quite amazing that they suggest that parts of the Guidelines were “updated accordingly”, if you consider the relatively limited nature of the changes they actually brought: https://lnkd.in/eYDiD7WC (and thus the fact that my comments – and those in contributions to the public consultation – largely remain unanswered in the updated Guidelines).

So what’s next? At this stage, I think the best option remains to discuss with your friendly legal strategist (wink wink) and ensure that if you think these Guidelines deserve to be challenged, you do that in the right way, on the basis of proper documentation and legal arguments.

Link to the Minutes: https://lnkd.in/es5Rc6MZ