In a case between the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) and Planet49 GmbH, the Federal Court of Justice had suspended the proceedings in the context of the appeal and submitted questions to the European Court of Justice on the interpretation of European data protection law (in particular Directive 95/46 - GDPR predecessor).

Topic: Legality | Consent and Cookies

Authority: Opinion of Advocate General EuGH

Sanction: Judgement still pending

In a case between the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) and Planet49 GmbH, the Federal Court of Justice had suspended the proceedings in the context of the appeal and submitted questions to the European Court of Justice on the interpretation of European data protection law (in particular Directive 95/46 – GDPR predecessor).

Planet49 GmbH had organised a competition for advertising purposes on its website in 2013. In the registration form, the checkbox with which the user agrees to the use of cookies was already checked as accepted by default. In his Opinion, the Advocate General of the European Court of Justice recommended that explicit consent be obtained when information is stored or information is accessed on the user’s terminal device. The criterion of express consent is not fulfilled if a consent checkbox has already been preselected. The Advocate General further specified that in the case of cookies at least the information on the identity of the person responsible, on the purpose and on any recipients of the data must be communicated. The decision of the European Court of Justice remains to be seen.

source http://curia.europa.eu/juris/document/document.jsf?text=&docid=212023&pageIndex=0&doclang=DE&mode=req&dir=&occ=first&part=1