Digital Services Act: the competent authorities for the digital sector
Taken from”The Legal Newspaper”, the legal information newspaper of the Wolters Kluwer Italia group and edited by Cedam, Utet Giuridica, Leggi d'Italia and Ipsoa.
As part of the new proposed regulation on digital services and platform responsibility (the “Digital Services Act”), Chapter IV is dedicated to the provisions on the implementation and application of the same regulation. In particular, the figures of the Digital Services Coordinator (at national level) and the European Committee for Digital Services are outlined and the powers of the European Commission with respect to the Digital Services Act are clarified. An analysis of these forecasts is undoubtedly important, since it allows us to understand the main procedural issues related to the application of the Digital Services Act and fits well into the current debate about the opportunity to introduce or identify ad hoc authorities for the digital sector.
On December 15, 2020, the European Commission presented a proposal for a regulation on digital services and platform responsibility, called the 'Digital Services Act' (hereinafter, for short, 'DSA'). For an all-round analysis of the content of the regulation, please refer to the contribution by Silvia Martinelli entitled “Digital Services Act: the new proposal for a Regulation of the European Commission for platforms”, published on 22 March 2021.
In this contribution, we will focus in detail on the provisions concerning the implementation and application of the regulation, contained in Chapter IV of the DSA - focusing, in particular, on the profiles relating to the competent authorities, at the national level and at the level of the European Union.
First, with regard to national authorities, section I of Chapter IV of the proposed regulation specifies that member states are required to identify one or more authorities responsible for the application and execution of the DSA. However, only one of these competent authorities must be designated as Digital Services Coordinator, thus being responsible for ensuring coordination at the national level in relation to all issues related to the DSA and being called upon to contribute to the effective and consistent application and implementation of the regulation within the European Union. In line with this objective, the DSA establishes that the various Digital Services Coordinators cooperate with each other, as well as with other competent national authorities, with the European Committee for Digital Services and with the European Commission.
With regard to jurisdiction, the DSA clarifies that the Digital Services Coordinator of the member state where the intermediary service provider is established is competent. If the latter does not have an office in the territory of the European Union but offers you services, it will be subject to the jurisdiction of the member state in which its legal representative resides or is established. If a service provider has not appointed a legal representative (in contravention of Article 11 of the regulation), then all Member States will be competent and the one who decides to exercise jurisdiction must inform the other Member States, so as to ensure compliance with the principle of ne bis in idem.
The Regulation also establishes common rules for digital service coordinators. First, designated authorities must carry out their duties in an impartial, transparent and timely manner. To this end, they must have adequate technical, financial and human resources. In addition, the authorities must be fully independent, remaining free from any external influence, direct or indirect, and not being able to seek or receive instructions from other public authorities or private entities.
In line with this approach, Digital Services Coordinators are also required to publish annual reports on their activities. On the other hand, with regard to their efficiency, it can also be recalled that they have the right to participate in joint investigations — in concert with other Coordinators for digital services — in relation to issues governed by the DSA.
The coordinators of digital services at national level are then conferred by the Regulation specific powers both to investigate and to enforce the measures adopted with respect to the conduct of intermediary service providers (these powers are listed and described in article 41 of the regulation).
In light of the forecasts commented so far, the DSA seems to all intents and purposes outline a “super” authority at the national level, which acts as coordinator and controller in the field of digital services, while not precluding member states from identifying additional operating authorities in the same area. In fact, as clarified by the Commission itself in the Q&A relating to the DSA, also published on December 15, 2020, “The new Digital Services Coordinator of each member state will constitute an important regulatory hub that will guarantee consistency and digital competence.”
Now moving attention across national borders, section 2 of Chapter IV is dedicated to the European Board For Digital Services. This is an independent advisory group, in which the National Digital Services Coordinators and the European Commission collaborate. The Committee can, among other things, assist the National Coordinators both by providing analyses, reports and recommendations, and by coordinating the new tool for joint investigations conducted by the Digital Services Coordinators.
Wanting then to better understand the role of the European Commission with respect to the supervision of platforms, it should be highlighted that the application of the DSA is mainly conferred on national authorities and, in particular, to the Digital Services Coordinators. However, both the Coordinators and the European Committee for Digital Services may refer unresolved cases to the Commission which, under these circumstances, is required to ask the competent Digital Services Coordinator to ensure compliance with the DSA.
In addition, the DSA provides an innovative mechanism for monitoring large platforms, assigning a direct role to the European Commission, which can avail itself of the advice and collaboration of the Digital Services Coordinators and the European Committee for Digital Services. In the case of persistent violations, the Commission - at the request of the competent Digital Services Coordinator, on the recommendation of the Committee, or on its own initiative - may then initiate proceedings with respect to large platforms, so as to allow rapid intervention in cases affecting the Union and in which online platforms present systemic risks. The Commission's intervention is also designed to guarantee the level of assistance necessary to address highly complex technical and social issues, which may result from the operation of larger online platforms.
Finally, with regard to the sanctions that may be imposed, it is up to each member state to establish them, in line with the requirements established by the DSA and in such a way that they are proportionate to the nature and seriousness of the violation, but at the same time dissuasive, so as to safeguard compliance with the regulation. In cases involving large platforms, the Commission may instead impose penalties of up to 6% of the brokerage provider's global turnover.
In addition to the sanctions, both the Digital Services Coordinators and the European Commission then have the right to ask intermediary service providers to take immediate action, when this proves necessary. The platforms, for their part, can make commitments aimed at remedying their deficiencies. If a platform operates illegally and refuses to comply with fundamental obligations — to the point of jeopardizing the lives and safety of individuals — it is then possible, in the last resort and only after involving all interested parties, to ask a court to temporarily suspend the service.
In conclusion, the enforcement system identified by the DSA places at the center the competent authorities at the national level - and, in particular, the coordinators of digital services - but, at the same time, it limits their self-reference, through the European Committee for Digital Services and guarantees the resilience of the system at EU level, giving the Commission powers that allow it to strengthen the application of the DSA.
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