National enforcement of the Digital Services Act

The EU’s Digital Services Act (DSA) aims to create a safe digital space free of illegal content as well as fair and harmonised rules to protect users' fundamental rights in the online environment. To this end, it sets out comprehensive rules for digital intermediary services as well as for authorities of EU Member States regulating these services and illegal content. In order to ensure largely consistent enforcement of the DSA throughout the Member States, the DSA contains extensive enforcement provisions and mechanisms, about which this article provides an overview.

Enforcement by the Member States

The DSA stipulates that its enforcement is primarily in the hands of the Member States, which are obliged to designate at least one authority as the Digital Services Coordinator (DSC) to be responsible for the supervision of the digital intermediary service providers and the enforcement of the DSA. In the event that a Member State designates more than one authority, it has to establish one as the DSC, which will generally then be responsible for all issues related to the monitoring and enforcement of the Regulation. Additionally, the DSC ensures the coordination between designated authorities at a national level for those matters where effective and consistent supervision is necessary.

The establishment of a DSC invites - at least from a German perspective - a comparison with the GDPR, which does not provide for such a coordinating body. As data protection is regulated at federal state level in Germany, the lack of a coordinating body has led to major differences between the federal states in terms of their views on data protection. The establishment of a DSC is, therefore, very welcome from a German perspective, although other Member States with a single data protection regulator may find it less of a novelty.

The nomination of the DSC must take place no later than 15 months after the DSA enters force. At least in Germany, the search for a suitable DSC is proving rather difficult and is the subject of much discussion. This is due not only to its central role and comprehensive enforcement powers, but again mainly due to the separation of powers between the federal and state governments in the area of digital services. At the moment, the German Federal Network Agency (Bundesnetzagentur) is the most likely Digital Services Coordinator but may then work together with the States’ Media Agencies (Landesmedienanstalten) to coordinate the Member State obligations under the DSA. However, a final decision is not yet in sight.

In addition to overcoming jurisdictional problems in certain Member States, Article 39 DSA also places specific requirements on the Digital Services Coordinator such as complete independence which entails that the Member States have to ensure the DSC has sufficient technical, financial and human resources to fulfill its obligations under the DSA at all times. With regard to the exact practical implementation of these requirements by Member States, in particular how much resource will be required for sufficient and timely compliance with DSA obligations, many questions remain open - at best, the hope is they will be largely resolved by the time the DSA enters into force.

The powers of the designated authorities and the DSC are derived from Articles 41 and 44a (for authorities other than the Digital Services Coordinator, in conjunction with Art. 38 (4)). Accordingly, the authorities are granted extensive information, search, order and sanction powers. The latter include the imposition of fines and periodic penalty payments. In particularly serious cases, the authorities may even order that users' access to the service in question be restricted. In some cases the authorities or the DSC are also authorised to instruct a Member State’s judicial authority to exercise the aforementioned rights. At this point, however, it should be noted that Article 41(6) obliges the Member States to lay down specific conditions and procedures for the exercise of the powers of the authorities and the DSC, the exact form of which is still pending in the Member States. However, it would be helpful if the Member States were to introduce largely harmonised ruless.

The DSA further provides for a right to complain and to compensation for users in case of unlawful administrative actions.

The EU Commissions' Right to Intervene

In cases against services that are designated as very large online platforms (VLOPs) and very large online search engines (VLOSEs) under the DSA, the EU Commission has a right to initiate or to intervene in proceedings. If the EU Commission uses its intervention rights, the DCSs are required to provide support, eg by exercising their investigative powers. The EU Commission is primarily entitled to certain rights of information, questioning, inspection, monitoring and ordering.

Digital Services Board

Less directly involved in enforcement, but still acting in an advisory capacity (also) for the designated authorities, is the newly created European Digital Services Board which is chaired by the EU Commission. The Digital Services Board's task is to advise the DSCs and the EU Commission on effective enforcement of the DSA, which will hopefully contribute to a largely uniform interpretation of the DSA within the Member States.

What to expect

The national regulations issued under Article 41(6) DSA to specify the enforcement procedures and the powers of the designated authorities and Digital Services Coordinators will have a major impact on the DSA's national enforcement. National interpretation and enforcement of the DSA are also ultimately expected to be influenced to a large extent by judicial decisions. In particular, the far-reaching powers of enforcement bodies at national and European level, which also include the issuance of interim injunctions, will require rapid clarification, for which the courts will have to make quick decisions in proceedings for interim relief as well. It remains to be seen how the enforcement regime develops and whether it will be as harmonised across the EU as the DSA intends.