ECJ, Case C‑61/19: Opi­ni­on of the Advo­ca­te General

The pre­sent case (Rs. C‑61/19) con­cerns a legal dis­pu­te bet­ween Oran­ge Româ­nia SA (a tele­com­mu­ni­ca­ti­ons pro­vi­der) and the Roma­ni­an data pro­tec­tion aut­ho­ri­ty. At issue was the Con­sent in the crea­ti­on and reten­ti­on of a Copy of ID in con­nec­tion with con­tract nego­tia­ti­ons with cus­to­mers. The GTC of the pro­vi­der for mobi­le pho­ne con­tracts sta­ted that the cus­to­mer had been infor­med about seve­ral points and had given his con­sent, inclu­ding the crea­ti­on and reten­ti­on of a copy of his ID.

The super­vi­so­ry aut­ho­ri­ty was of the opi­ni­on that the­re was a lack of a effec­ti­ve con­sent. The Bucha­rest Regio­nal Court the­r­e­fo­re refer­red the fol­lo­wing que­sti­ons to the ECJ:

1. what con­di­ti­ons must be ful­fil­led within the mea­ning of Artic­le 2(h) of Direc­ti­ve 95/46 in order for a decla­ra­ti­on of intent to be regard­ed as a for the spe­ci­fic case and in know­ledge of the facts can be con­side­red to have taken place?

2. what con­di­ti­ons must be ful­fil­led within the mea­ning of Artic­le 2(h) of Direc­ti­ve 95/46 in order for a decla­ra­ti­on of inten­ti­on to be regard­ed as Wit­hout coer­ci­on can be con­side­red to have taken place?

The Advo­ca­te Gene­ral pro­po­sesto ans­wer the­se que­sti­ons as follows:

A data sub­ject who intends to enter into a con­trac­tu­al rela­ti­on­ship with a com­pa­ny for the pro­vi­si­on of mobi­le com­mu­ni­ca­ti­ons ser­vices does not give the com­pa­ny “con­sent,” i.e., expres­ses not “wit­hout cons­traint, for the spe­ci­fic case and in Know­ledge of the facts“their will, within the mea­ning of Artic­le 2(h) of the [Data Pro­tec­tion Direc­ti­ve] and Artic­le 4(11) of the [GDPR], if it is based on an other­wi­se stan­dar­di­zed con­tract must decla­re hand­writ­ten, that they have Con­sent in making and kee­ping pho­to­co­pies of their iden­ti­ty docu­ments denied.

As part of the rea­so­ning, the Advo­ca­te Gene­ral sta­tes, inter alia, the following:

  • The ECJ has ruled in the Planet49 decis­i­on reco­gnized that a pre-ticked check­box does not lead to con­sent. This applies equal­ly to the ana­log world: Pre­set check­bo­xes mean No acti­ve con­sent of the per­son sig­ning the docu­ment: “The situa­ti­on is not free of doubt. The text may or may not have been read. The “rea­der” may have for­got­ten to do so out of sheer care­less­ness; it is the­r­e­fo­re impos­si­ble to deter­mi­ne cle­ar­ly whe­ther the con­sent was given vol­un­t­a­ri­ly”.
  • The bur­den of pro­of for con­sent lies with the per­son respon­si­ble; “any doubts as to the giving of con­sent by the data sub­ject must be resol­ved by evi­dence to be pro­vi­ded by the data con­trol­ler”.

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