EPR vis-à-vis GDPR – A comparative analysis of the ePrivacy Regulation and the General Data Protection Regulation

This study was prepared by Brinkhof for CIPL

On 10 January 2017, the Commission adopted its proposal for a new ePrivacy Regulation to replace the existing Directive 2002/58/EC. This proposal is currently being discussed in the Council. One of the questions being considered, is the link between the ePR and the General Data Protection Regulation. In particular, the current Presidency has tabled the question whether clarification is needed on where the ePR complements the GDPR, and where it particularizes it, with a focus on art. 5, 6, 7, 8 and 10 of the ePR.

The objective of this short study is to get a better understanding of the relationship between the proposed ePR and the GDPR, and more specifically, to map where both instruments overlap and diverge.

To achieve this, the paper:

• Summarizes the meaning of each of the ePR-articles listed above
• Describes what protection the GDPR provides in absence of these ePR-articles
• Describes the link between the two regulations if the ePR were to be adopted as proposed by the Commission, including which regime will take precedence in the event of a conflict between the two
• Identifies what, if any, added value the ePR would bring over the GDPR.

It examines these effects of the ePR from the perspective of both the protection of fundamental rights and freedoms and the free movement of electronic communications data and electronic communications services within the Union.

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