Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (Text with EEA relevance)

Digital Services Coordinators and, where applicable, other competent authorities that do not follow the opinions, requests or recommendations addressed to them adopted by the Board shall provide the reasons for this choice, including an explanation on the investigations, actions and the measures that they have implemented, when reporting pursuant to this Regulation or when adopting their relevant decisions, as appropriate.

The Commission, in cooperation with the Digital Services Coordinators and the Board, shall develop Union expertise and capabilities, including, where appropriate, through the secondment of Member States’ personnel.

In addition, the Commission, in cooperation with the Digital Services Coordinators and the Board, shall coordinate the assessment of systemic and emerging issues across the Union in relation to very large online platforms or very large online search engines with regard to matters covered by this Regulation.

The Commission may ask the Digital Services Coordinators, the Board and other Union bodies, offices and agencies with relevant expertise to support the assessment of systemic and emerging issues across the Union under this Regulation.

Member States shall cooperate with the Commission, in particular through their respective Digital Services Coordinators and other competent authorities, where applicable, including by making available their expertise and capabilities.

For the purposes of investigating compliance of providers of very large online platforms and of very large online search engines with the obligations laid down in this Regulation, the Commission may exercise the investigatory powers laid down in this Section even before initiating proceedings pursuant to Article 66(2). It may exercise those powers on its own initiative or following a request pursuant to paragraph 2 of this Article.

Where a Digital Services Coordinator has reason to suspect that a provider of a very large online platform or of a very large online search engine has infringed the provisions of Section 5 of Chapter III or has systemically infringed any of the provisions of this Regulation in a manner that seriously affects recipients of the service in its Member State, it may send, through the information sharing system referred to in Article 85, a request to the Commission to assess the matter.

A request pursuant to paragraph 2 shall be duly reasoned and at least indicate:

The Commission may initiate proceedings in view of the possible adoption of decisions pursuant to Articles 73 and 74 in respect of the relevant conduct by the provider of the very large online platform or of the very large online search engine that the Commission suspect of having infringed any of the provisions of this Regulation.

Where the Commission decides to initiate proceedings pursuant to paragraph 1 of this Article, it shall notify all Digital Services Coordinators and the Board through the information sharing system referred to in Article 85, as well as the provider of the very large online platform or of the very large online search engine concerned.

In the exercise of its powers of investigation under this Regulation the Commission may request the individual or joint support of any Digital Services Coordinators concerned by the suspected infringement, including the Digital Services Coordinator of establishment. The Digital Services Coordinators that have received such a request, and, where involved by the Digital Services Coordinator, any other competent authority, shall cooperate sincerely and in a timely manner with the Commission and shall be entitled to exercise their investigative powers referred to in Article 51(1) in respect of the provider of the very large online platform or of the very large online search engine at stake, with regard to information, persons and premises located within the territory of their Member State and in accordance with the request.

The Commission shall provide the Digital Services Coordinator of establishment and the Board with all relevant information about the exercise of the powers referred to in Articles 67 to 72 and its preliminary findings referred to in Article 79(1). The Board shall submit its views on those preliminary findings to the Commission within the period set pursuant to Article 79(2). The Commission shall take utmost account of any views of the Board in its decision.

In order to carry out the tasks assigned to it under this Section, the Commission may, by simple request or by decision, require the provider of the very large online platform or of the very large online search engine concerned, as well as any other natural or legal person acting for purposes related to their trade, business, craft or profession that may be reasonably aware of information relating to the suspected infringement, including organisations performing the audits referred to in Article 37 and Article 75(2), to provide such information within a reasonable period.

When sending a simple request for information to the provider of the very large online platform or of the very large online search engine concerned or other person referred to in paragraph 1 of this Article, the Commission shall state the legal basis and the purpose of the request, specify what information is required and set the period within which the information is to be provided, and the fines provided for in Article 74 for supplying incorrect, incomplete or misleading information.

Where the Commission requires the provider of the very large online platform or of the very large online search engine concerned or other person referred to in paragraph 1 of this Article to supply information by decision, it shall state the legal basis and the purpose of the request, specify what information is required and set the period within which it is to be provided. It shall also indicate the fines provided for in Article 74 and indicate or impose the periodic penalty payments provided for in Article 76. It shall further indicate the right to have the decision reviewed by the Court of Justice of the European Union.

The providers of the very large online platform or of the very large online search engine concerned or other person referred to in paragraph 1 or their representatives and, in the case of legal persons, companies or firms, or where they have no legal personality, the persons authorised to represent them by law or by their constitution shall supply the information requested on behalf of the provider of the very large online platform or of the very large online search engine concerned or other person referred to in paragraph 1. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading.

At the request of the Commission, the Digital Services Coordinators and other competent authorities shall provide the Commission with all necessary information to carry out the tasks assigned to it under this Section.

The Commission shall, without undue delay after sending the simple request or the decision referred to in paragraph 1 of this Article, send a copy thereof to the Digital Services Coordinators, through the information sharing system referred to in Article 85.

In order to carry out the tasks assigned to it under this Section, the Commission may interview any natural or legal person who consents to being interviewed for the purpose of collecting information, relating to the subject-matter of an investigation, in relation to the suspected infringement. The Commission shall be entitled to record such interview by appropriate technical means.

If the interview referred to in paragraph 1 is conducted on other premises than those of the Commission, the Commission shall inform the Digital Services Coordinator of the Member State in the territory of which the interview takes place. If so requested by that Digital Services Coordinator, its officials may assist the officials and other accompanying persons authorised by the Commission to conduct the interview.

In order to carry out the tasks assigned to it under this Section, the Commission may conduct all necessary inspections at the premises of the provider of the very large online platform or of the very large online search engine concerned or of another person referred to in Article 67(1).

The officials and other accompanying persons authorised by the Commission to conduct an inspection shall be empowered to:

Inspections may be carried out with the assistance of auditors or experts appointed by the Commission pursuant to Article 72(2), and of Digital Services Coordinator or other competent national authorities of the Member State in the territory of which the inspection is conducted.

Where the production of required books or other records related to the provision of the service concerned is incomplete or where the answers to questions asked under paragraph 2 of this Article are incorrect, incomplete or misleading, the officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the penalties provided for in Articles 74 and 76. In good time before the inspection, the Commission shall inform the Digital Services Coordinator of the Member State in the territory in which the inspection is to be conducted thereof.

During inspections, the officials and other accompanying persons authorised by the Commission, the auditors and experts appointed by the Commission, the Digital Services Coordinator or the other competent authorities of the Member State in the territory of which the inspection is conducted may require the provider of the very large online platform or of the very large online search engine or other person concerned to provide explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts, and may address questions to its key personnel.

The provider of the very large online platform or of the very large online search engine or other natural or legal person concerned shall be required to submit to an inspection ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the inspection, set the date on which it is to begin and indicate the penalties provided for in Articles 74 and 76 and the right to have the decision reviewed by the Court of Justice of the European Union. The Commission shall consult the Digital Services Coordinator of the Member State on territory of which the inspection is to be conducted prior to taking that decision.

Officials of, and other persons authorised or appointed by, the Digital Services Coordinator of the Member State on the territory of which the inspection is to be conducted shall, at the request of that Digital Services Coordinator or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission in relation to the inspection. To this end, they shall have the powers listed in paragraph 2.

Where the officials and other accompanying persons authorised by the Commission find that the provider of the very large online platform or of the very large online search engine or the other person concerned opposes an inspection ordered pursuant to this Article, the Member State in the territory of which the inspection is to be conducted shall, at the request of those officials or other accompanying persons and in accordance with the national law of the Member State, afford them necessary assistance, including, where appropriate under that national law, in the form of coercive measures taken by a competent law enforcement authority, so as to enable them to conduct the inspection.

If the assistance provided for in paragraph 8 requires authorisation from a national judicial authority in accordance with the national law of the Member State concerned, such authorisation shall be applied for by the Digital Services Coordinator of that Member State at the request of the officials and other accompanying persons authorised by the Commission. Such authorisation may also be applied for as a precautionary measure.

Where the authorisation referred to in paragraph 9 is applied for, the national judicial authority before which a case has been brought shall verify that the Commission decision ordering the inspection is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. When conducting such verification, the national judicial authority may ask the Commission, directly or through the Digital Services Coordinators of the Member State concerned, for detailed explanations, in particular those concerning the grounds on which the Commission suspects an infringement of this Regulation, concerning the seriousness of the suspected infringement and concerning the nature of the involvement of the provider of the very large online platform or of the very large online search engine or of the other person concerned. However, the national judicial authority shall not call into question the necessity for the inspection nor demand information from the case file of the Commission. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice of the European Union.

In the context of proceedings which may lead to the adoption of a decision of non-compliance pursuant to Article 73(1), where there is an urgency due to the risk of serious damage for the recipients of the service, the Commission may, by decision, order interim measures against the provider of the very large online platform or of the very large online search engine concerned on the basis of a prima facie finding of an infringement.

A decision under paragraph 1 shall apply for a specified period of time and may be renewed in so far this is necessary and appropriate.

If, during proceedings under this Section, the provider of the very large online platform or of the very large online search engine concerned offers commitments to ensure compliance with the relevant provisions of this Regulation, the Commission may by decision make those commitments binding on the provider of the very large online platform or of the very large online search engine concerned and declare that there are no further grounds for action.

The Commission may, upon request or on its own initiative, reopen the proceedings:

Where the Commission considers that the commitments offered by the provider of the very large online platform or of the very large online search engine concerned are unable to ensure effective compliance with the relevant provisions of this Regulation, it shall reject those commitments in a reasoned decision when concluding the proceedings.

For the purposes of carrying out the tasks assigned to it under this Section, the Commission may take the necessary actions to monitor the effective implementation and compliance with this Regulation by providers of the very large online platform and of the very large online search engines. The Commission may order them to provide access to, and explanations relating to, its databases and algorithms. Such actions may include, imposing an obligation on the provider of the very large online platform or of the very large online search engine to retain all documents deemed to be necessary to assess the implementation of and compliance with the obligations under this Regulation.

The actions pursuant to paragraph 1 may include the appointment of independent external experts and auditors, as well as experts and auditors from competent national authorities with the agreement of the authority concerned, to assist the Commission in monitoring the effective implementation and compliance with the relevant provisions of this Regulation and to provide specific expertise or knowledge to the Commission.

The Commission shall adopt a non-compliance decision where it finds that the provider of the very large online platform or of the very large online search engine concerned does not comply with one or more of the following:

Before adopting the decision pursuant to paragraph 1, the Commission shall communicate its preliminary findings to the provider of the very large online platform or of the very large online search engine concerned. In the preliminary findings, the Commission shall explain the measures that it considers taking, or that it considers that the provider of the very large online platform or of the very large online search engine concerned should take, in order to effectively address the preliminary findings.

In the decision adopted pursuant to paragraph 1 the Commission shall order the provider of the very large online platform or of the very large online search engine concerned to take the necessary measures to ensure compliance with the decision pursuant to paragraph 1 within a reasonable period specified therein and to provide information on the measures that that provider intends to take to comply with the decision.

The provider of the very large online platform or of the very large online search engine concerned shall provide the Commission with a description of the measures it has taken to ensure compliance with the decision pursuant to paragraph 1 upon their implementation.

Where the Commission finds that the conditions of paragraph 1 are not met, it shall close the investigation by a decision. The decision shall apply with immediate effect.

In the decision referred to in Article 73, the Commission may impose on the provider of the very large online platform or of the very large online search engine concerned fines not exceeding 6 % of its total worldwide annual turnover in the preceding financial year where it finds that the provider, intentionally or negligently:

The Commission may adopt a decision imposing on the provider of the very large online platform or of the very large online search engine concerned or on another natural or legal person referred to in Article 67(1) fines not exceeding 1 % of the total annual income or worldwide turnover in the preceding financial year, where they intentionally or negligently:

Before adopting the decision pursuant to paragraph 2 of this Article, the Commission shall communicate its preliminary findings to the provider of the very large online platform or of the very large online search engine concerned or to another person referred to in Article 67(1).

In fixing the amount of the fine, the Commission shall have regard to the nature, gravity, duration and recurrence of the infringement and, for fines imposed pursuant to paragraph 2, the delay caused to the proceedings.

When adopting a decision pursuant to Article 73 in relation to an infringement by a provider of a very large online platform or of a very large online search engine of any of the provisions of Section 5 of Chapter III, the Commission shall make use of the enhanced supervision system laid down in this Article. When doing so, it shall take utmost account of any opinion of the Board pursuant to this Article.

In the decision referred to in Article 73, the Commission shall require the provider of a very large online platform or of a very large online search engine concerned to draw up and communicate, within a reasonable period specified in the decision, to the Digital Services Coordinators, the Commission and the Board an action plan setting out the necessary measures which are sufficient to terminate or remedy the infringement. Those measures shall include a commitment to perform an independent audit in accordance with Article 37(3) and (4) on the implementation of the other measures, and shall specify the identity of the auditors, as well as the methodology, timing and follow-up of the audit. The measures may also include, where appropriate, a commitment to participate in a relevant code of conduct, as provided for in Article 45.

Within one month following receipt of the action plan, the Board shall communicate its opinion on the action plan to the Commission. Within one month following receipt of that opinion, the Commission shall decide whether the measures set out in the action plan are sufficient to terminate or remedy the infringement, and shall set a reasonable period for its implementation. The possible commitment to adhere to relevant codes of conduct shall be taken into account in that decision. The Commission shall subsequently monitor the implementation of the action plan. To that end, the provider of a very large online platform or of a very large online search engine concerned shall communicate the audit report to the Commission without undue delay after it becomes available, and shall keep the Commission up to date on steps taken to implement the action plan. The Commission may, where necessary for such monitoring, require the provider of a very large online platform or of a very large online search engine concerned to provide additional information within a reasonable period set by the Commission.

The Commission may take necessary measures in accordance with this Regulation, in particular Article 76(1), point (e), and Article 82(1), where:

The Commission may adopt a decision, imposing on the provider of the very large online platform or of the very large online search engine concerned or other person referred to in Article 67(1), as applicable, periodic penalty payments not exceeding 5 % of the average daily income or worldwide annual turnover in the preceding financial year per day, calculated from the date appointed by the decision, in order to compel them to:

Where the provider of the very large online platform or of the very large online search engine concerned or other person referred to in Article 67(1) has satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may fix the definitive amount of the periodic penalty payment at a figure lower than that under the original decision.

The powers conferred on the Commission by Articles 74 and 76 shall be subject to a limitation period of five years.

Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.

Any action taken by the Commission or by the Digital Services Coordinator for the purpose of the investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. Actions which interrupt the limitation period shall include, in particular, the following:

Each interruption shall start time running afresh. However, the limitation period for the imposition of fines or periodic penalty payments shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which the limitation period has been suspended pursuant to paragraph 5.

The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.

The power of the Commission to enforce decisions taken pursuant to Articles 74 and 76 shall be subject to a limitation period of five years.

Time shall begin to run on the day on which the decision becomes final.

The limitation period for the enforcement of penalties shall be interrupted:

Each interruption shall start time running afresh.

The limitation period for the enforcement of penalties shall be suspended for so long as:

Before adopting a decision pursuant to Article 73(1), Article 74 or 76, the Commission shall give the provider of the very large online platform or of the very large online search engine concerned or other person referred to in Article 67(1) the opportunity of being heard on:

The provider of the very large online platform or of the very large online search engine concerned or other person referred to in Article 67(1) may submit its observations on the Commission’s preliminary findings within a reasonable period set by the Commission in its preliminary findings, which may not be less than 14 days.

The Commission shall base its decisions only on objections on which the parties concerned have been able to comment.

The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission's file under the terms of a negotiated disclosure, subject to the legitimate interest of the provider of the very large online platform or of the very large online search engine or other person concerned in the protection of their business secrets. The Commission shall have the power to adopt decisions setting out such terms of disclosure in case of disagreement between the parties. The right of access to the file of the Commission shall not extend to confidential information and internal documents of the Commission, the Board, Digital Service Coordinators, other competent authorities or other public authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and those authorities. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.

The information collected pursuant to Articles 67, 68 and 69 shall be used only for the purpose of this Regulation.

The Commission shall publish the decisions it adopts pursuant to Article 70(1), Article 71(1) and Articles 73 to 76. Such publication shall state the names of the parties and the main content of the decision, including any penalties imposed.

The publication shall have regard to the rights and legitimate interests of the provider of the very large online platform or of the very large online search engine concerned, any other person referred to in Article 67(1) and any third parties in the protection of their confidential information.

Where all powers pursuant to this Section to bring about the cessation of an infringement of this Regulation have been exhausted, the infringement persists and causes serious harm which cannot be avoided through the exercise of other powers available under Union or national law, the Commission may request the Digital Services Coordinator of establishment of the provider of the very large online platform or of the very large online search engine concerned to act pursuant to Article 51(3).

Where the coherent application of this Regulation so requires, the Commission, acting on its own initiative, may submit written observations to the competent judicial authority referred to Article 51(3). With the permission of the judicial authority in question, it may also make oral observations.

When a national court rules on a matter which is already the subject matter of a decision adopted by the Commission under this Regulation, that national court shall not take any decision which runs counter to that Commission decision. National courts shall also avoid taking decisions which could conflict with a decision contemplated by the Commission in proceedings it has initiated under this Regulation. To that effect, a national court may assess whether it is necessary to stay its proceedings. This is without prejudice to Article 267 TFEU.

The Commission shall establish and maintain a reliable and secure information sharing system supporting communications between Digital Services Coordinators, the Commission and the Board. Other competent authorities may be granted access to this system where necessary for them to carry out the tasks conferred to them in accordance with this Regulation.

The Digital Services Coordinators, the Commission and the Board shall use the information sharing system for all communications pursuant to this Regulation.

The Commission shall adopt implementing acts laying down the practical and operational arrangements for the functioning of the information sharing system and its interoperability with other relevant systems. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 88.

Without prejudice to Directive (EU) 2020/1828 or to any other type of representation under national law, recipients of intermediary services shall at least have the right to mandate a body, organisation or association to exercise the rights conferred by this Regulation on their behalf, provided the body, organisation or association meets all of the following conditions:

Providers of online platforms shall take the necessary technical and organisational measures to ensure that complaints submitted by bodies, organisations or associations referred to in paragraph 1 of this Article on behalf of recipients of the service through the mechanisms referred to in Article 20(1) are processed and decided upon with priority and without undue delay.

The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

The delegation of power referred to in Articles 24, 33, 37, 40 and 43 shall be conferred on the Commission for five years starting from 16 November 2022. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

The delegation of power referred to in Articles 24, 33, 37, 40 and 43 may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of power specified in that decision. It shall take effect the day following that of its publication in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

A delegated act adopted pursuant to Articles 24, 33, 37, 40 and 43 shall enter into force only if no objection has been expressed by either the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.

The Commission shall be assisted by a committee (‘the Digital Services Committee’). That Committee shall be a Committee within the meaning of Regulation (EU) No 182/2011.

Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

Articles 12 to 15 of Directive 2000/31/EC are deleted.

References to Articles 12 to 15 of Directive 2000/31/EC shall be construed as references to Articles 4, 5, 6 and 8 of this Regulation, respectively.

By 18 February 2027, the Commission shall evaluate and report to the European Parliament, the Council and the European Economic and Social Committee on the potential effect of this Regulation on the development and economic growth of small and medium-sized enterprises.

By 17 November 2027, and every five years thereafter, the Commission shall evaluate this Regulation, and report to the European Parliament, the Council and the European Economic and Social Committee.

Where appropriate, the report referred to in paragraphs 1 and 2 shall be accompanied by a proposal for amendment of this Regulation.

The Commission shall, in the report referred to in paragraph 2 of this Article, also evaluate and report on the annual reports on their activities by the Digital Services Coordinators provided to the Commission and the Board pursuant to Article 55(1).

For the purpose of paragraph 2, Member States and the Board shall send information on the request of the Commission.

In carrying out the evaluations referred to in paragraph 2, the Commission shall take into account the positions and findings of the European Parliament, the Council, and other relevant bodies or sources, and shall pay specific attention to small and medium-sized enterprises and the position of new competitors.

By 18 February 2027, the Commission, after consulting the Board, shall carry out an assessment of the functioning of the Board and of the application of Article 43, and shall report it to the European Parliament, the Council and the European Economic and Social Committee, taking into account the first years of application of the Regulation. On the basis of the findings and taking utmost account of the opinion of the Board, that report shall, where appropriate, be accompanied by a proposal for amendment of this Regulation with regard to the structure of the Board.

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall apply from 17 February 2024.