Article 29 ePrivacy Regulation – Entry into force and application

1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2. This Regulation shall apply from [24 months from the date of entry into force of this Regulation].

I. General remarks

This provision stipulates the time of the ePrivacy Regulation’s entry into force and the respective applicability of its provisions. In combination with its Sec. 2, Art. 29 Sec. 1 ePrivacy Regulation provides for a transitional period in order to allow Member States and addressees of the regulation to make the necessary arrangements and prepare for the new legal situation. This transitional period is necessary not least with respect to the experience made under the GDPR, which (despite a two year transitional period) had overwhelmed addressees with efforts in adjusting standards of compliance with the new provisions.^[1] Particularly small and medium-sized companies were hardly able to create the necessary infrastructure and organization.^[2] Also Member States had problems implementing or amending delegated legislation; supervisory authorities complained about the overload of work and lack of staff.^[3] Indeed, compared to the meaning and effects which the GDPR unfolded, the impact of the ePrivacy Regulation is expected to be of a more limited nature.

With regard to the specific dates of entry into force it must be noted that the ePrivacy Regulation is still in the trilogue negotiations. Thus, an entry into force is not expected prior to the end of 2022 at the earliest, meaning that its stipulations will not be applicable prior to the end of 2024 (cf. the diagram below).

[1] Golland, in: Taeger/Gabel, DSGVO – BDSG – TTDSG (2022), Art. 99 Rec. 9.
[2] Golland, in: Taeger/Gabel, DSGVO – BDSG – TTDSG (2022), Art. 99 Rec. 9.
[3] Golland, in: Taeger/Gabel, DSGVO – BDSG – TTDSG (2022), Art. 99 Recs. 10 et seq.

II. Entry into force, Sec. 1

Pursuant to Art. 29 Sec. 1 ePrivacy Regulation, the regulation shall enter into force on the twentieth day following its publication in the Official Journal of the European Union. This corresponds to Art. 297 Sec. 1 TFEU, pursuant to which Art. 29 Sec. 1 ePrivacy Regulation is only declaratory in nature.^[4]

The term of “entry into force” must be distinguished from the actual applicability of provisions. It corresponds to the terminology of general and direct applicability pursuant to Art. 288 Sec. 2 S. 1 and 2 TFEU, which also distinguishes between the general validity of European rules as a formal condition and the (materially) binding requirement of application within each Member State.^[5] With respect to Art. 29 ePrivacy Regulation this means that even though the regulation is in place and constitutes an integral part of the Acquis communautaire, its stipulations must be complied with only pursuant to Art. 29 Sec. 2 ePrivacy Regulation, i.e. two years after its entry into force.

[4] Cf. Golland, in: Taeger/Gabel, DSGVO – BDSG – TTDSG (2022), Art. 99 Rec. 4.
[5] Cf. Nettesheim, in: Das Recht der Europäischen Union (2022), Art. 1 TFEU, Rec. 67.

III. Date of applicability, Sec. 2

As a regulation pursuant to Art. 288 Sec. 2 TFEU, the ePrivacy Regulation takes general and direct effect in all Member States. Pursuant to Art. 29 Sec. 2 ePrivacy Regulation, the date of these effects is postponed with respect to the time of entry into force under Sec. 1 – namely two years afterwards. Starting from this date, all addressees must comply with the ePrivacy Regulation’s stipulations. What is more, to the extent that national provisions conflict with stipulations under the ePrivacy Regulation, the latter supersedes them in the course of the primacy of application of European law.^[6] Consequently, conflicting rules of Member States are ineffective from this point onwards. The date of 24 months from entry into force of the ePrivacy Regulation has not been finalized, yet, and could be changed in the course of the trilogue procedures. Thus, until the ePrivacy Regulation’s final adoption, the length of the transitional period may still be subject to changes.

[6] Nettesheim, in: Grabitz/Hilf/Nettesheim, Das Recht der Europäischen Union, Art. 1 TFEU, Recs. 71 et seqq.

Article 29 ePrivacy Regulation – Entry into force and application

Art. 29 ePrivacy Regulation