[tc4me]

Visitors must not be denied access to the website. In the area of the GDPR, consent is considered to be given voluntarily if the person “has a real or free choice and is thus able to refuse or withdraw consent without suffering any disadvantages”, such as it says in the 42nd recital of the GDPR. If the website cannot be used without an active cookie consent, this is a disadvantage for the visitor. A consent that is obtained in this way is therefore possibly not legally binding at all - which, in the worst-case scenario, has an impact on the person responsible.

Visitors to the website should also be given access if they do not agree to the use of tracking cookies, for example. Even if cookie banners appear on many websites, they are not required by law in Germany at the moment.

Changes will only be made with the new e-privacy directive, which will not be introduced before 2020.
Active consent by those affected is often not necessary for cookies: in many cases, the legitimate interests of the person responsible already form a sufficient legal basis. As is so often the case, however, it can depend on the individual case - the German supervisory authorities are also more restrictive and accordingly consider consent more often necessary. In any case, it is important that those affected are informed in the data protection declaration in accordance with the provisions of the GDPR. This also includes which data is collected under which circumstances and that data subjects can object to the use of cookies. For more information, see our GDPR guide.

(Update June 8th, 2020) The European Data Protection Committee now also takes the view in its guidelines that cookie walls cannot be used to obtain effective consent. There should be exceptions for use in connection with paid services. The guidelines are available here in English. Please also note that aspects of the general need for consent, in particular due to the case law of the ECJ and BGH, no longer have to correspond to the current status.