On September 4, 2024, the German government adopted the Regulation on Consent Management Services - also known as the Cookie Banner Regulation. The new regulation is intended to provide an alternative to cookie banners in future. The advantage for users is that they do not have to consent to the use of cookies again and again, but can store their decisions permanently.
Legal basis of the new cookie banner regulation
The new regulation on consent management services is based on Section 26 (2) of the Telecommunications Digital Services Data Protection Act (TDDDG).
§ Section 26 (2) TDDDG authorizes the Federal Government to regulate the following by statutory order with the consent of the Bundestag and the Bundesrat:
- the requirements for user-friendly and competition-compliant procedures that a consent management service must offer in order to be recognized,
- the procedure for recognition and
- the technical and organizational measures so that software for retrieving and displaying information from the Internet and providers of digital services can take into account the end user's settings managed via an integrated recognized consent management service with regard to consent in accordance with Section 25 (1) TDDDG.
§ Section 26(1) TDDDG stipulates that an independent body may recognize services which, among other things, provide user-friendly and competition-compliant procedures to manage the consent of end users required under Section 25(1) TDDDG.
Consent management by services possible
In future, consent management services will be able to manage users' decisions regarding the consent they have and have not given. This should make decisions more transparent and comprehensible. Once decisions have been made, they do not have to be constantly repeated if providers of digital services accept the stored settings.
"This procedure also offers advantages for providers of digital services. They can ask for consent in a user-friendly, legally compliant process without disrupting the design of their website with a banner", explains the Federal Ministry for Digital and Economic Affairs in a press release.
The new consent management services are recognized by the Federal Commissioner for Data Protection and Freedom of Information.
No new obligations for companies
According to the Federal Ministry, the regulation should be a new approach. Within the limits of European data protection law, a legal framework for cookie banners is being established for the first time.
The new regulation does not result in any new mandatory implementation requirements for companies. The requirements to be met for effective consent from the General Data Protection Regulation (GDPR) remain in place. In particular, the regulation provides a framework for consent management in compliance with competition law by integrating recognized consent management services.
Accordingly, it is still unclear what consequences the new regulation will have in practice. "Its success depends largely on providers developing on the market and the new consent procedures being used by users and providers of digital services," explains the Federal Ministry somewhat meekly. The effectiveness of the regulations is to be evaluated two years after the regulation comes into force.
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