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I know you're thinking: "What does Brexit have to do with ePrivacy?" Well, let me lay out a little scenario for you.

First, you've got the issue of what's going to happen with the U.K.'s 73 seats in the European Parliament when Brexit goes final at 11 p.m. on March 29, 2019. In a provisional vote last week, the Constitutional Affairs Committee decided to take those 73 seats and parcel 27 of them out to various member states that were feeling under-represented, and then keep the rest in hand for potential future members (like, Turkey, I guess? That seems doubtful, but who knows?). 

There is a line of thought here in Brussels, however, mostly driven by French President Emmanuel Macron, that there might be a move to fill those remaining 46 seats with parliamentarians who are EU-wide. Essentially, they might replace 73 U.K. members with members who are elected by the EU as a whole, plus other member state MEPs, and therefore are more likely to represent a pro-EU stance. Clearly, there's a possibility they would see a piece of legislation like the ePrivacy Regulation differently. 

And that could be good for a tough ePrivacy Regulation, actually, as all three voting members from the U.K. who sit on the LIBE Committee voted against the ePrivacy report prepared by Rapporteur Marju Lauristin back in October. Without them, there might be less opposition. 

I know you're thinking: "Who cares? EPrivacy already came out of LIBE, and Parliament, for that matter!"

Correct. However, we still await a draft from the Council. And while the Bulgarian presidency seems intent on getting a draft out before their remit is over in June, a number of observers have noted to me here in Brussels that the debate within the Council still seems pretty rudimentary. 

One person said, "I mean, they're still asking questions amongst themselves like, 'Do you support legitimate interest? Yes/No.'"

So, while there are statements being made by the Bulgarian presidency that we'll get to trilogue on ePrivacy by September, and then maybe get a final draft by December, there's also a solid chance that doesn't happen. Lots of observers have said they think the Austrian presidency, which comes next, has a much better chance of having the political clout to get to general consensus on a Council draft. But that would mean we don't get to trilogue until January 2019 (remember, GDPR took five solid years, and we're not close to that right now on ePrivacy, so this wouldn't be all that weird in the EU). 

Which means negotiations could carry out as far as March 2019 when, you guessed it, Brexit happens, completely rejiggering the configuration of the Parliament and potentially messing with negotiations. And that would mean that ePrivacy would almost definitely carry over into the next parliamentary election, scheduled for May of 2019, just a few months later. They couldn't have trilogues carry through those elections, as MEPs will turn over and all unfinished business in the Parliament would have to be retaken up by the new MEPs. Plus, there would be the turnover of the Commission, which might have an entirely different political will than the previous Commission. 

Considering the close vote in the LIBE Committee the first time around, is it possible Parliament simply doesn't support its draft anymore? Could it go back to the drawing board as a Parliament that's actually more privacy conscious sticks to its guns and the Council demands a new approach? Could ePrivacy drag into 2020? Maybe. Maybe further. I had one observer speculate that the final ePrivacy Regulation would be a relatively short document that essentially refers all questions on data protection to the GDPR and basically gets out of the way. 

Of course, the exact opposite might happen. The coming into force of the GDPR might make it very obvious that the current ePrivacy Directive is not fit for purpose. That might put a kick in the pants of the Council and ensure a draft comes out of the Bulgarian presidency and that trilogues hustle up to make sure they're done before the Brexit and the parliamentary elections. 

There would appear to be good leverage on either side of the negotiating table. That can make for one of two things: Either an impetus to negotiate, as both sides see the other's strengths, or a complete and total stalemate.

photo credit: Tiocfaidh ár lá 1916 We should not be collateral damage in Brexit shambles via photopin (license)


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