The Council of the European Union is in the process of defining its position on the ePrivacy Regulation (current draft as PDF, December 5, 2017; the amendments refer to the Commission’s draft of January 10, 2017). The Parliament had already given its opinion on this on October 26, 2017 (the proposals of the Commission and the Parliament are compared here).
Art. 3 of the Regulation will thereby international applicability regulate the ePrivacy Regulation. In the versions of the Commission and the Parliament, it was not clear how far the application to companies without an establishment in the EU goes. The Council now wants to clarify this: Covered would be the transactions subject to the regulation, including the transmission of electronic advertising, if they are aimed at end users who are in the EU stop The applicability here leans on the application of the GDPR on behavioral observation.
Also like after the GDPR is a Representative to be appointedif a non-European company is covered by the ePrivacy Regulation, whereby Recital 9a in the version proposed by the Parliament clarifies that this representative is at the same time the representative within the meaning of Art. 27 GDPR can be.
Art. 3 of the ePrivacy Regulation (“Territorial scope and representative”) as amended by the Council reads as follows (emphasis added):
1. this regulation applies to:
(a) the provision of electronic communications services to end-users who are in the Union,
(aa) the processing of electronic communications content in transmission and of electronic communications metadata of end-users who are in the Union;
(c ) the protection of information processed by or emitted by or stored in the terminal equipment of end-users who are in the Union.
(ca) the placing on the Union market of software permitting electronic communications, including the retrieval and presentation of information on the internet;
(cb) the offering of publicly available directories of end-users of electronic communications services who are in the Union;
(cc) the sending or presenting of direct marketing communications to end-users who are in the Union.
2. where […] is not established in the Union it shall designate in writing a representative in the Union.
2a. The requirements laid down in paragraph 2 shall not apply if activities listed in paragraph 1 are occasional and are unlikely to result in a risk to the fundamental rights of end-users taking into account the nature, context, scope and purpose of those activities.
3. the representative shall be established in one of the Member States where the end-users of such electronic communications services are located.
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