On 16 November 2020, Members of the European Parliament: Nicolás González Casares, Ibán García Del Blanco, Juan Fernando López Aguilar and Marcos Ros Sempere of the Group of the Progressive Alliance of Socialists and Democrats in the European Parliament, posed a written parliamentary question to the European Commission:
“According to allegations made by the Noyb group, Apple is in breach of EU law by allowing users of its mobile phones to be tracked without their consent. According to the complaints filed with the German and Spanish regulators, the unique tracking code generated by each of the company’s mobile phones allows Apple and application developers to track users’ behaviour without their knowledge or consent.
In view of these complaints, could the Commission answer the following questions:
1. Is it aware of these complaints and the practices complained of? Has it contacted the above-mentioned national regulators to discuss the content of the complaints?
2. Does it intend to launch its own investigation into this company to ascertain whether such practices exist and to take appropriate action?
3. Are you aware whether such practices also take place in the telephone terminals of other companies and/or do you intend to carry out an investigation?”
On 19 January 2021, Internal Market Commissioner Thierry Breton responded on behalf of the European Commission stating: “Article 5(3) of Directive 2002/58/EC (ePrivacy Directive) requires consent for the storing of information or the gaining of access to information already stored in a user’s terminal equipment (i.e. smartphones), except for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the services.
The ePrivacy Directive relies on the definition of consent in the General Data Protection Regulation, which requires that consent is freely given, specific, informed and an unambiguous indication of the user’s wishes.
The Commission is aware of the complaints launched by the Noyb group on Apple’s practices. The Commission does not have knowledge of whether the activities that the Honourable Members describe also take place in the telephone terminals of other companies.
The monitoring and enforcement of the application of the ePrivacy Directive falls primarily under the competence of the relevant competent national authorities. The Commission as the guardian of the Treaties monitors that Member States comply with EC law.”
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