# C_2021019EN.01000401.xml

| 18.1.2021 | EN | Official Journal of the European Union | C 19/4 |
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18.1.2021

EN

Official Journal of the European Union

C 19/4

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Judgment of the Court (Second Chamber) of 11 November 2020 (request for a preliminary ruling from the Tribunalul Bucureşti — Romania) — Orange România SA v Autoritatea Națională de Supraveghere a Prelucrării Datelor cu Caracter Personal (ANSPDCP)

(Case C-61/19) (1)

(Reference for a preliminary ruling - Directive 95/46/EC - Article 2(h) and Article 7(a) - Regulation (EU) 2016/679 - Article 4(11) and Article 6(1)(a) - Processing of personal data and protection of private life - Collection and storage of the copies of identity documents by a provider of mobile telecommunications services - Concept of the data subject’s ‘consent’ - Freely given, specific and informed indication of wishes - Declaration of consent by means of a tick box - Signing of the contract by the data subject - Burden of proof)

(2021/C 19/04)

Language of the case: Romanian

Referring court

Tribunalul Bucureşti

Parties to the main proceedings

Applicant: Orange România SA

Defendant: Autoritatea Națională de Supraveghere a Prelucrării Datelor cu Caracter Personal (ANSPDCP)

Operative part of the judgment

Article 2(h) and Article 7(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Article 4(11) and Article 6(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that it is for the data controller to demonstrate that the data subject has, by active behaviour, given his or her consent to the processing of his or her personal data and that he or she has obtained, beforehand, information relating to all the circumstances surrounding that processing, in an intelligible and easily accessible form, using clear and plain language, allowing that person easily to understand the consequences of that consent, so that it is given with full knowledge of the facts. A contract for the provision of telecommunications services which contains a clause stating that the data subject has been informed of, and has consented to, the collection and storage of a copy of his or her identity document for identification purposes is not such as to demonstrate that that person has validly given his or her consent, as provided for in those provisions, to that collection and storage, where

| — | the box referring to that clause has been ticked by the data controller before the contract was signed, or where |
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the box referring to that clause has been ticked by the data controller before the contract was signed, or where

| — | the terms of that contract are capable of misleading the data subject as to the possibility of concluding the contract in question even if he or she refuses to consent to the processing of his or her data, or where |
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the terms of that contract are capable of misleading the data subject as to the possibility of concluding the contract in question even if he or she refuses to consent to the processing of his or her data, or where

| — | the freedom to choose to object to that collection and storage is unduly affected by that controller, in requiring that the data subject, in order to refuse consent, must complete an additional form setting out that refusal. |
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the freedom to choose to object to that collection and storage is unduly affected by that controller, in requiring that the data subject, in order to refuse consent, must complete an additional form setting out that refusal.

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(1)  OJ C 164, 13.5.2019.

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