Digital Services Act – conduct of certain proceedings by the Commission

SUMMARY OF:

Commission Implementing Regulation (EU) 2023/1201 on detailed arrangements for the conduct of certain proceedings by the Commission pursuant to Regulation (EU) 2022/2065 (‘Digital Services Act’)

WHAT IS THE AIM OF THE IMPLEMENTING REGULATION?

The implementing regulation sets out practical arrangements in applying Regulation (EU) 2022/2065, the Digital Services Act (DSA), for providers of formally designated very large online platforms (VLOPs) or very large online search engines (VLOSEs).

The areas covered specifically are:

premises inspections,
compliance monitoring,
the right to be heard,
access to the file, and
confidential information.

KEY POINTS

Inspections

Explanations or information during European Commission inspections must only be given by authorised representatives or members of staff of the VLOPs or VLOSEs or others acting on their behalf, where applicable.
Explanations may be recorded by Commission’s officials, with a copy made available to the VLOP or VLOSE providers concerned.
Where explanations are given by unauthorised staff, the Commission sets a time limit for any necessary rectification or amendment, without prejudice to its power to impose fines and penalty payments.

Monitoring

VLOP and VLOSE providers must:

grant the Commission access to their databases or algorithmic systems through the technical means or interfaces specified by the Commission;
give timely and effective access, enabling the Commission to access all the information necessary to assess compliance;
comply with the Commission’s rules as set out in the Digital Services Act on the transmission of documents;
retain all documents necessary to assess compliance – the Commission defines the terms of retention, including the period and scope of documents to be retained.

The Commission must:

ensure that any experts or auditors it appoints are independent from the providers concerned and that they have proven expertise and knowledge in the relevant field and remain independent throughout the period of appointment;
in doing so, take into account shared ownership, governance, management, personnel or resources of the external experts or auditors and any contractual relationships with the providers over the previous 24 months.

Right to be heard

Providers have a time limit during which they may ‘succinctly’ submit their views in writing with supporting evidence, upon receiving preliminary findings from the Commission (and notice of any measures it intends to take).
Information must be correct, complete, not misleading, and presented in a clear, well-structured and intelligible manner.
Comments should comply with the format and page limits set out in the Annex to the regulation, and be submitted by an authorised person.

Access to the preliminary findings file

The Commission must give the addressee access to:

the preliminary findings file (including associated documents, which may be redacted for confidentiality reasons), but not before the preliminary findings are provided;
all documents in its file, without any redactions, under the terms of disclosure to be set out in a Commission decision.

Identifying and protecting confidential information

The Commission:

must not disclose or make accessible any information or documents it obtains if they contain business secrets or other confidential information relating to any individual;
must inform the providers concerned, or individuals where applicable, that access to the information may be granted under Article 5 of this regulation;
may require the originators to identify the documents or statements they consider confidential;
may set a time limit for providers to:
- substantiate their claims of confidentiality,
- provide a non-confidential version of the documents and database, or
- provide a concise, non-confidential description of each piece of redacted information;
must inform providers if it intends to disclose information it does not regard as confidential or if it believes there is an overriding interest in disclosing the information, with the following provisos:
- the Commission must give providers a week to submit objections,
- if providers object, the Commission may set a date for disclosure at least a week ahead, giving reasons.

FROM WHEN DOES THE REGULATION APPLY?

It has applied since 12 July 2023.

BACKGROUND

The Digital Services Act is part of a package that also includes Regulation (EU) 2022/1925, the Digital Markets Act (see summary).

For further information, see:

The Digital Services Act package (European Commission)
The Digital Markets Act: Ensuring fair and open digital markets (European Commission)
The Digital Services Act – Ensuring a safe and accountable online environment (European Commission)
Your life online: How is the EU making it easier and safer for you? (European Council – Council of the European Union).

MAIN DOCUMENT

Commission Implementing Regulation (EU) 2023/1201 of 21 June 2023 on detailed arrangements for the conduct of certain proceedings by the Commission pursuant to Regulation (EU) 2022/2065 of the European Parliament and of the Council (‘Digital Services Act’) (OJ L 159, 22.6.2023, pp. 51–59).

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