Tag: Conseil d’État

France’s supreme court, the Conseil d’État, restricts the CNIL’s Cookie Guidelines

22. June 2020

On June 19th, 2020, the French Conseil d’État has ordered the Commission Nationale de l’Informatique et des Libertés (CNIL) in a court decision to dismiss particular provisions made in its Guidelines on the subject of cookies and other tracers, which it published in 2019.

The Conseil d’État has received several complaints by businesses and professional associations, who turned to the supreme court in order to have the CNIL’s Guidelines refuted.

The main focus of the decision was the ban on cookie walls. Cookie walls are cookie consent pages which, upon declining consent to the processing of the cookies used for the website, deny the user access to the website. In their Guideline on cookies and other tracers from 2019, the CNIL had declared that such cookie walls were not in accordance with the principles of the General Data Protection Regulation (GDPR), causing a lot of businesses to appeal such a provision in front of the Conseil d’État.

In their decision on the matter, the Conseil d’État has declared that the CNIL, as only having suggestive and recommendatory competence in data protection matters, did not have the competence to issue a ban on cookie walls in the Guidelines. The Conseil d’État focused on the fact that the CNIL’s competence was only recommendatory, and did not have the finality to issue such a provision.

However, in its decision, the supreme court did not put to question whether the ban of cookie walls was in itself lawful or not. The Conseil d’État refrained from giving any substantive statement on the matter, leaving that question unanswered for the moment.

The Conseil d’État has further stated in its decision that in the case of the ability of data subjects to give their consent to processing activities, it is indeed necessary, in order to form free and informed consent, that the data subject is informed individually about each processing activity and its purpose before giving consent. However, business have the margin to decide if they collect the data subject’s consent througha one time, global consent with specifically individualized privacy policies, or over individual consent for each processing activity.

In the rest of its decision, the Conseil d’État has confirmed the remainder of the CNIL’s guidelines and provision on the matter as being lawful and applicable, giving the complainants only limited reason to rejoice.