Permission to do something or enter into an agreement is not considered „necessary for the performance of a contract,“ i.e. where a requested service can be provided without the specific treatment. The EDPB recognizes that another legal basis may be applicable as long as the relevant conditions are met, for example. B consent, legitimate interest. The legal basis must be defined at the beginning of the treatment and the information provided to the persons concerned in accordance with Articles 13 and 14 must specify the legal basis. Determining the appropriate legal basis is linked to principles of fairness and assignment. The evaluation of what is „necessary“ involves a combined and factual assessment of the treatment „for the objective pursued and if it is less intrusive than other options to achieve the same objective.“ Online services often collect detailed information about how users interact with their service. In most cases, the collection of organizational ratios related to a service or details of user engagement cannot be considered necessary to provide the service, as the service could be provided without processing this personal data. Nevertheless, a service provider may invoke other legal grounds for this treatment, such as legitimate interest or consent.B. [3] A contractual clause that has not been the subject of individual negotiation is abusive under the „Abusive Contractual Conditions Directive“ if, contrary to the good faith requirement, it results in a significant imbalance in the contractual rights and obligations of the parties to the detriment of the consumer. Like the obligation of transparency in the RGPD, the Directive on Abusive Contractual Clauses imposes the use of simple and understandable language.

The processing of personal data, which is based on a clause in the Directive on abusive contractual clauses, generally does not comply with the RGPD`s requirement in Article 5, paragraph 1, point a, that treatment is lawful and fair. This is particularly important when Article 6, paragraph 1, point b), and an online service contract are concluded by the individuals concerned. Depending on the circumstances, the persons concerned may mistakenly feel that they are giving their consent in accordance with Article 6, paragraph 1, point a), if they sign a contract or accept the terms of use. At the same time, a processing officer may wrongly consider that the signing of the contract corresponds to consent within the meaning of Article 6, paragraph 1, point a). These are very different concepts. It is important to distinguish between accepting the terms of use for the conclusion of a contract and granting consent within the meaning of Article 6, paragraph 1, point a), as these concepts have different legal requirements and consequences. consent or consent to a condition or approval of something; To accept a contract or a contractual element. It should be noted that the concept of „needs necessary to carry out the contract“ is not only an assessment of what is authorized by the terms of the contract or included in the terms of the contract.