Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband e.V. – CJEU Judgment (Germany, 2019)

A German company called Planet49 organized an online lottery hosted on their webpage. In order to participate in the lottery the participant had to enter a name and an address. Underneath the input field there were two checkboxes. The first checkbox required the user to accept being contacted by firms for promotional offers. The second checkbox required the user to consent to cookies being installed on the participants computer. The first checkbox was not pre-ticked, while the second checkbox was. To participate in the lottery the user had to tick, at least, the first checkbox. The Federation of German Consumer Organisations (the “Bundesverband”) initated court proceedings against Planet49, claiming that the declaration of consent did not meet the requirements for a freely given and informed consent. The case reached the Federal Court of Justice (“Bundesgerichtshof”), which referred questions regarding the scope of consent under provisions of the Data Protection Directive 95/46/EC, the ePrivacy Directive 2002/58/EC, and the GDPR to the CJEU. The case was referred to the Court of Justice on 5 October 2017 - before the GDPR became applicable on 25 May 2018. As the Bundesverband sought an injunction to prevent Planet49 from continuing its practices in the future, the Court’s decision takes into account the requirements for consent on the basis of both the Directive 95/46/EC and the GDPR. The Court assessed the requirements for a valid consent under both Directive 95/46/EC and the GDPR and found that there were no substantial differences between them, noting however that the GDPR explicitly states requirements that need to be inferred under Directive 95/46/EC. As the Court notes, the notion of consent under the ePrivacy directive should have the same meaning as consent under Directive 95/46/EC and the GDPR. A key question posed by the referring court in relation to the consent requirement was whether consent could be “passive” or if it had to be “active”. The C