Does this not only refer to the TOS of the shop where you buy? E.g. an electronic shop selling a Samsung TV has no influence on the TOS of Samsung that might be presented during initial setup, so how would this be presented before purchase? I know its a bit different and tricky with Fairphone and their phones sold through FP shop, as they produce the phones and have to integrate the Google TOS, but still how would this be presented before purchase? And what if you buy through a reseller? So in this case would it be before use instead of before purchase?
But yes, to write valid AGBs/TOS is really difficult as its indeed not a contractual agreement between 2 parties, as 1 party has no influence on it and even if you sign a contract referring to TOS when they are not properly written, you will have good chances in court.
Per law you must have a data protection policy in place when you use personal data for your business, this must be a standalone document and must be accesible from each single page of your website or must be handed out to the customer, prior to collecting personal data. However, I’m not aware you must have a TOS, this is normally more to protect yourself as a business company and to avoit to have to negotiate a single contract with each single customer.
I’m not a laywer, but in my eyes the OP is mixing up terms. You can disagree/Opt-out to the use of some specific cookies and tracker, however disagreeing to TOS or a companies data protcetion policy in general, means you will not be able to use the product at all. So even if FP would/could add the disagree button, this would not help, because it would mean the setup process would just be disabled as I doubt that you can set-up the phone to automatically deinstall GApps when disagreeing to Googles TOS. So with the disagree button the state of the phone would be the same as it is now, useless.
Overall I’m really interested in FP response so would appreciate if you could share @WhyNotHugo
What I actually find a bit odd: on the FP2 when I skip Wifi/mobile data set-up and then click on the TOS link with the intention to read it, a pop-up tells me I have no connection to internet and tells me to use another device and provides the website address. However, when I connect WiFi first and then click on the TOS link, the setup wizard just brings me back to the “data copy from previous device” window, so neither to the TOS or the data protection policy itself nor a hint where I can find it, so I cannot read before agreeing and that is not in line with EU law in my eyes.
Edit some statement from the Netherlands reg Google Analytics