A new draft of the ePrivacy Regulation is now available


On 5 January 2021, the Portuguese Presidency of the Council of the European Union released its new draft of the ePrivacy Regulation, which represents the 14th draft overall.

The new draft largely follows the structure of the version proposed by the preceding German Presidency. Among others, the amendments proposed by the Portuguese Presidency aim “to simplify the text and to further align it with the GDPR” and “reflect the lex specialis relation of ePrivacy to the GDPR“.

In a nutshell, the most notable amendments concern the following:

  • broadening the territorial scope, so as the ePrivacy Regulation is also applicable “in a place where Member State law applies by virtue of public international law“, in order to fully align with Article 3 (3) of the GDPR;
  • replacing the too restrictive lawful basis “to achieve the transmission of the communication” to the broader “to provide an electronic communication service“, in order to be consistent with the GDPR standard of processing for the performance of a contract;
  • reintroducing provisions that allow the processing of electronic communications data (including metadata) for purposes compatible with the purpose for which the data was initially collected, in order to fully align with Article 6 (4) of the GDPR;
  • introducing provisions that require service providers sharing anonymized statistical electronic communications data with third parties to carry out a data protection impact assessment and inform end-users of the envisaged processing operations.

This version of the proposal will be further discussed on 7 January 2021, in the Working Party on Telecommunications and Information Society’s meeting.

The new draft of the ePrivacy Regulation is available here.