1) How Planet49 used cookies?
Planet49 is a German company who organized a promotional lottery on his webpage www.dein-macbook.de. For the visitor to take part in the lottery he had to provide certain personal data such as his name and address.
Below the input fields for the personal data two short explanatory text were placed accompanied by checkboxes. The first text declared that the visitor consents to receive commercial information from the sponsors and cooperation partners of Planet49. The checkbox appeared without a preselected tick.
The second text declared that the visitor consents that Planet49 sets cookies on his device, which enables Planet49 to evaluate the visitor's surfing and use behaviour on websites. The checkbox next to the text contained a preselected tick.
2) How using cookies came before the CJEU?
The German Federation of Consumer Organisations (Federation") sued Planet49 as in his opinion the practice of the company more precisely the consents requested by him do not comply with the German consumer protection laws.
The litigation between the Federation and Planet49 came even before the German high court who decided to start a preliminary ruling procedure before the CJEU.
In fact, the German high court was on the opinion that in order to make a decision in the case the it is necessary to interpret together the Directive on privacy and electronic communications and the GDPR (as well as his predecessor", the Data Protection Directive).
3) The questions before the CJEU
The CJEU need to answer the below questions:
Is the consent validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user's equipment is permitted by way of a pre-checked checkbox?
When deciding about the validity of the consent does that make a difference whether the information stored or accessed (cookies) on the user's equipment is considered personal data or not?