The ePrivacy Directive as a Test Case of Better Regulation

• This paper examines the application of the principles of better regulation in practice; focusing on the revamp of the Directive on Privacy and Electronic Communications (the ePrivacy Directive – ePD) as a case study. This paper identifies two points which potentially call these rules into question.
• Firstly, it considers an apparent disconnection between the 2009 review of the ePD and that of the Data Protection Directive (which is soon to be replaced by the General Data Protection Regulation). The paper suggests that the unaligned reviews of these Directives may have increased the possibility of the EU’s producing overlapping legislation – and therefore contributed to the need for the current review of the ePD, which seeks to prevent any duplications.
• The 2016 evaluation and review of the ePD is the main focus of the statistical analysis in the second section of this paper. At the time of writing, the review is ongoing and the prospective new proposal is due to be published at the beginning of 2017. The study concentrates particularly on the public consultation which, as part of the evaluation undertaken by the Commission during 2016, has collected a number of stakeholders’ opinions. The paper highlights differences among opinions of consumers and civil society on the one hand, and industry on the other hand.
• Furthermore, the paper reflects concerns expressed by industry organisations about the design of the consultation. Scrutinising responses by industry associations and umbrella organisations in particular, it reviews several questions from the consultation regarding the relevance of the ePD, the nature of the potential new instrument and its scope. The analysis highlights potential difficulties for formulating conclusions from these questions and proposes several recommendations to strengthen the coherence and transparency of policy-making by the European Commission.

Paper is available via the PDF button on the right.