The Digital Services Act sets rules for online services used within the European Union, regardless of where the service provider is based. To ensure these rules are followed, both national authorities and the European Commission have the authority to investigate and impose penalties on all services that fail to comply. In this article, we will explain how the enforcement process works and what companies can expect in terms of compliance and potential consequences.
Steps in the enforcement process
Opening an investigation
The European Commission may start an investigation if it suspects a service is violating the Digital Services Act. This can be based on its own monitoring or reports from external sources. During an investigation, the Commission can take various measures, including:
- Requests for information
- Interviews with relevant individuals
- Inspections of company premises, subject to prior judicial authorization in the Member State of establishment
- Access platform data and algorithms to assess their compliance
- Interview individuals who may hold relevant information.
The Commission has already begun formal investigations into several online platforms over issues such as illegal products, misleading practices, misinformation, risks to minors, and advertising concerns. The first investigation was launched against platform X (formerly Twitter) in December 2023, focusing on matters related to illegal content, X’s approach to combating misinformation, transparency measures, and concerns surrounding the platform’s ‘blue check’ verification system.
Opening a proceeding
If the European Commission finds reason to believe there’s been a breach of the Digital Services Act after the initial investigation, it can take the next step by opening a formal proceeding. Before any penalties are imposed, the Commission must give the involved platform the chance to respond to its initial findings and suggested actions.
Issuing a non-compliance decision
If the European Commission determines a violation has occurred, it can impose substantial penalties, including:
- Fines up to 6% of the global turnover
- Impose periodic penalties up to 5% of the average daily worldwide turnover for delays in implementing required remedies or compliance measures
- Orders to take corrective actions within a specified timeframe
- Enhanced supervision periods to monitor compliance
Implementing interim measures
If an investigation reveals an urgent risk of serious harm to users, the Commission can introduce temporary and proportionate interim measures before issuing a final decision.
If a persistent infringement causes serious harm to users and involves criminal offenses that pose threats to life or safety, the Commission may take last-resort measures, including:
- Allowing affected parties to submit observations within at least 14 working days.
- Requesting a judicial authority in the Member State of establishment to temporarily restrict access to the service.
- Seeking a court order for service suspension of the services via the Digital Services Coordinator.
The role of the legal representative
Under the Digital Services Act, providers based outside the EU must appoint an authorized representative within the Union. They must share their representative’s details with authorities and make this information public to ensure oversight and enforcement. This appointment is particularly important for enforcement purposes, as online providers must enable their representatives to act on their behalf when dealing with EU authorities, including the European Commission.
Get in touch with us today or a free 20-minute discussion to protect your business with our expert Digital Services Act legal representatives.
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