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 will not have to repeatedly consent to the use of Cookies consent, 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 to ensure that software for retrieving and displaying information from the Internet and providers of digital services can manage the settings of end users with regard to the data subject's consent managed via an integrated recognized consent management service Consent pursuant to Section 25 (1) TDDDG.
§ Section 26(1) TDDDG stipulates that an independent body may recognize services which, inter alia, provide user-friendly and competition-compliant procedures in order to meet the requirements of Section 25(1) TDDDG. Consent of end users.
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. 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 to ensure an effective Consent from the General Data Protection Regulation (GDPR). 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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