CE - 434684: Difference between revisions
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French Conseil d’Etat settled that when forbidding the use of cookie walls in its recommendations, the CNIL exceeded what it could do within the framework of a soft law measure. | French Conseil d’Etat settled that when forbidding the use of cookie walls in its recommendations, the CNIL exceeded what it could do within the framework of a soft law measure. | ||
== English Summary == | ==English Summary== | ||
=== Facts === | ===Facts=== | ||
L’association des agences de communication and others contested the legality of several recommendations and principles enshrined in the 4th of July 2019 CNIL deliberation | L’association des agences de communication and others contested the legality of several recommendations and principles enshrined in the [https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000038783337/ 4th of July 2019 CNIL deliberation]. | ||
=== Dispute === | ===Dispute=== | ||
Could the CNIL set out a prohibition of “cookie walls”? | Could the CNIL set out a prohibition of “cookie walls”? | ||
=== Holding === | ===Holding=== | ||
The Conseil d’Etat considered that the CNIL outpaced its powers when considering cookie walls as illegal in a soft law measure (article 2 of its 4th of July 2019 deliberation). The CNIL recalled the position of the EDPB (European Data Protection Board), stating that cookie walls should be forbidden because the cost of not consenting is too high and thus the consent is not freely given (25 May 2018, on ePrivacy). Nonetheless, the Court still considered it as an excess of power from the CNIL. | The Conseil d’Etat considered that the CNIL outpaced its powers when considering cookie walls as illegal in a soft law measure (article 2 of its 4th of July 2019 deliberation). The CNIL recalled the position of the EDPB (European Data Protection Board), stating that cookie walls should be forbidden because the cost of not consenting is too high and thus the consent is not freely given ([https://edpb.europa.eu/our-work-tools/our-documents/otros/statement-edpb-revision-eprivacy-regulation-and-its-impact_en 25 May 2018, on ePrivacy]). Nonetheless, the Court still considered it as an excess of power from the CNIL. | ||
Every other points of the CNIL guidelines were validated. | Every other points of the CNIL guidelines were validated. | ||
== Comment == | ==Comment== | ||
Several interpretations have resulted from this case. Some inferred that cookie walls was, therefore, a legal practice. In fact, the Conseil d’Etat recalled in its press release that the Court did not decide on the merits | Several interpretations have resulted from this case. Some inferred that cookie walls was, therefore, a legal practice. In fact, the Conseil d’Etat recalled in its press release that the Court did not decide on the merits on that matter but solely on the capacity of the CNIL to set out a general and absolute prohibition within the framework of a deliberation. A position that was also backed by the EDPB ([https://edpb.europa.eu/our-work-tools/our-documents/letters/edpb-response-letter-13-july-2020-news-media-europe-and-others_en 19 novembre 2020 – “Letter of 13 July 2020 from News Media Europe and others”]). | ||
== Further Resources == | ==Further Resources== | ||
==English Machine Translation of the Decision== | |||
== English Machine Translation of the Decision == | |||
The decision below is a machine translation of the French original. Please refer to the French original for more details. | The decision below is a machine translation of the French original. Please refer to the French original for more details. | ||
Revision as of 13:49, 3 February 2021
| CE - 434684 | |
|---|---|
 | |
| Court: | CE (France) |
| Jurisdiction: | France |
| Relevant Law: | GDPR Article 82 Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés |
| Decided: | 12.06.2020 |
| Published: | 19.06.2020 |
| Parties: | Association des agences de communication |
| National Case Number/Name: | 434684 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | French |
| Original Source: | CE (in French) |
| Initial Contributor: | JulesO3 |
French Conseil d’Etat settled that when forbidding the use of cookie walls in its recommendations, the CNIL exceeded what it could do within the framework of a soft law measure.
English Summary
Facts
L’association des agences de communication and others contested the legality of several recommendations and principles enshrined in the 4th of July 2019 CNIL deliberation.
Dispute
Could the CNIL set out a prohibition of “cookie walls”?
Holding
The Conseil d’Etat considered that the CNIL outpaced its powers when considering cookie walls as illegal in a soft law measure (article 2 of its 4th of July 2019 deliberation). The CNIL recalled the position of the EDPB (European Data Protection Board), stating that cookie walls should be forbidden because the cost of not consenting is too high and thus the consent is not freely given (25 May 2018, on ePrivacy). Nonetheless, the Court still considered it as an excess of power from the CNIL.
Every other points of the CNIL guidelines were validated.
Comment
Several interpretations have resulted from this case. Some inferred that cookie walls was, therefore, a legal practice. In fact, the Conseil d’Etat recalled in its press release that the Court did not decide on the merits on that matter but solely on the capacity of the CNIL to set out a general and absolute prohibition within the framework of a deliberation. A position that was also backed by the EDPB (19 novembre 2020 – “Letter of 13 July 2020 from News Media Europe and others”).
Further Resources
English Machine Translation of the Decision
The decision below is a machine translation of the French original. Please refer to the French original for more details.
