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.
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==English Summary==
==English Summary==
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.


===Facts===
===Facts===

Revision as of 13:50, 3 February 2021

CE - 434684
Courts logo1.png
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


English Summary

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.

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.