Paul Voigt, Axel von dem Bussche: the EU ePrivacy Regulation – Preliminary Guidance and Commentary 

Article 26 ePrivacy Regulation – Committee

Art. 26 ePrivacy Regulation

Article 26 ePrivacy Regulation – Committee

1. The Commission shall be assisted by the Communications Committee established under Article 118 of Directive (EU) 2018/1972. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011[1].

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Art. 26 ePrivacy Regulation

(42)  Since the objective of this Regulation, namely to ensure an equivalent level of protection of natural and legal persons and the free flow of electronic communications data throughout the Union, cannot be sufficiently achieved by the Member States and can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

Art. 26 ePrivacy Regulation regulates the formal requirements for adopting acts of tertiary legislation by the Commission. Contrary to the adoption of delegated acts pursuant to Art. 25 ePrivacy Regulation, the competence for adopting implementing acts does not follow from an exclusive assignment to the Commission (cf. Art. 290 TFEU), but accessorily from the Member States (cf. Art. 291 Sec. 1 TFEU).[1] Consequently, the Commission exercises competences which are primarily a resort of Member States.

The difference between delegated and implementing acts is that the earlier complement or even amend the underlying regulation with respect to “certain non-essential elements”. Implementing acts, however, cannot amend the underlying act but only specify its mode of implementation.[2] The regulatory form of implementing acts is subject to discretion by the Union legislator.[3] It may apply any given legislative option, i.e. a regulation, directive, decision, recommendation or opinion (cf. Art. 288 TFEU).

In order to confer the power, the legislator must regard it necessary in order to safeguard uniform conditions for implementing legally binding Union acts (Art. 291 Sec. 2 TFEU). The conferral must be made within the underlying act itself and provide for a clear assignment to the Commission.[4]

With regard to the ePrivacy Regulation, Rec. 41 S. 1 ePrivacy Regulation fulfils the task of opening up the possibility of implementing acts by the Commission. It argues that by reason of scale and effects, the objective of this Regulation (i.e. to ensure an equivalent level of privacy and data protection and the free flow of electronic communications data throughout the Union) could not sufficiently be achieved by the Member States. Thus, the Union might adopt respective measures. Despite this general statement of intent, the ePrivacy Regulation does, however, not provide for an explicit conferral of powers to the Commission in adopting implementing acts. This becomes apparent in particular with respect to the GDPR which provides for multiple legal bases in this regard.[5] Thus, Art. 26 ePrivacy Regulation has no application case and must, consequently, be considered ineffective.

[1] Cf. Pauly, in: Paal/Pauly, DS-GVO BDSG (2021), Art. 93 Rec. 2.

[2] Pötters, in: Gola, Datenschutz-Grundverordnung (2018), Art. 93 Rec. 1.

[3] Cf. Herbst, in: Kühling/Buchner, DS-GVO BDSG (2020), Art. 93 Rec. 1.

[4] Cf. Pauly, in: Paal/Pauly, DS-GVO BDSG (2021), Art. 93 Rec. 5.

[5] Cf. Arts. 28 Sec. 7; 40 Sec. 9; 43 Sec. 9; 45 Secs. 3 and 5; 46 Sec. 2 lit. d and d; 47 Sec. 3; 61 Sec. 9 and 67 GDPR.

Art. 26 Sec. 1 ePrivacy Regulation stipulates the formal procedure in assisting the Commission when adopting the above explained implementing acts. Assistance shall be provided by the Communications Committee, which has been established due to Art. 118 EECC. Pursuant to Art. 3 Sec. 2 Regulation (EU) No 182/2011[6] this committee shall be composed of representatives of the Member States and chaired by a representative of the Commission (while not having the right to take part in the committee vote). It must be distinguished from the EDPB under Art. 19 Sec. 1 ePrivacy Regulation in conjunction with Art. 68 GDPR.[7]

Assistance is provided according to the advisory procedure under Art. 5 Regulation (EU) No 182/2011. The committee shall deliver its opinion, which, if necessary, may be done in form of a vote, subject to stipulations on a qualified majority under Art. 16 Secs. 4, 5 TEU and Art. 238 Sec. 3 TFEU. Subsequent to this opinion, the Commission needs to decide on the adoption of the draft, taking “the utmost account” of the conclusions drawn from its preceding discussions and of the final opinion.

[6] Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.

[7] Pauly, in: Paal/Pauly, DS-GVO BDSG (2021), Art. 93 Rec. 8; Schiedermair, in: Simitis/Hornung/Spiecker gen. Döhmann, Datenschutzrecht (2019), Art. 93 Rec. 5.

Where reference is made to Art. 26 ePrivacy Regulation, the examination procedure pursuant to Art. 5 Regulation (EU) No 182/2011 applies. Accordingly, the committee shall deliver its majority opinion, determined due to Art. 16 Secs. 4, 5 TEU and Art. 238 Sec. 3 TFEU. Only, where this opinion is positive or no opinion is delivered, the Commission shall adopt the implementing act (Art. 5 Secs. 2 to 4 Regulation (EU) No 182/2011). In cases where an implementing act is deemed to be necessary, nonetheless, the chair may either submit an amended version or submit the draft to an appeal committee for further deliberation.

The procedure is complemented by the right to scrutiny of the European Parliament and the Council, allowing to indicate to the Commission that, according to its own assessment, a draft implementing act exceeds the implementing powers provided by the underlying legislation (Art. 11 Regulation (EU) No 182/2011). In this case, the Commission has to review the draft and inform the indicating body about its intention to maintain, amend or withdraw it, subsequently.