It looks unlikely that the draft e-Privacy Regulation will come into effect before 2021. European Council negotiations on the text of the draft Regulation are currently ongoing, and trilogue discussions by the Council, Parliament and Commission will then take place. However, the upcoming May 2019 European elections may lead to a delay in the Council adopting a common position and the trilogue discussions commencing. In addition, the latest draft text of the Regulation, published by the European Council, provides that it will apply 24 months from the date it is adopted, with the result that even if it is adopted imminently, it may not come into effect until 2021.
Late last year, various industry associations raised concerns about the draft Regulation in a joint letter. The letter urged the EU institutions not to rush negotiations, stating that many substantive issues which have been raised since the draft Regulation was first put forward have not yet been addressed. It stressed that the expanded scope of the draft Regulation would create a large overlap with the GDPR, effectively replacing large portions of the GDPR for a vast majority of data processing activities. In particular, it called for closer consideration of the legal bases for both electronic communications data and terminal equipment data and alignment with those available under the GDPR.
We will be closely monitoring the progress of the draft Regulation and will keep you updated.