keyboard_tab Digital Service Act 2022/2065 EN

1.   Providers of online_platforms shall take the necessary technical and organisational measures to ensure that notices submitted by trusted flaggers, acting within their designated area of expertise, through the mechanisms referred to in Article 16, are given priority and are processed and decided upon without undue delay.

2.   The status of ‘trusted flagger’ under this Regulation shall be awarded, upon application by any entity, by the Digital Services Coordinator of the Member State in which the applicant is established, to an applicant that has demonstrated that it meets all of the following conditions:

3.   Trusted flaggers shall publish, at least once a year easily comprehensible and detailed reports on notices submitted in accordance with Article 16 during the relevant period. The report shall list at least the number of notices categorised by:

Those reports shall include an explanation of the procedures in place to ensure that the trusted flagger retains its independence.

Trusted flaggers shall send those reports to the awarding Digital Services Coordinator, and shall make them publicly available. The information in those reports shall not contain personal data.

4.   Digital Services Coordinators shall communicate to the Commission and the Board the names, addresses and email addresses of the entities to which they have awarded the status of the trusted flagger in accordance with paragraph 2 or whose trusted flagger status they have suspended in accordance with paragraph 6 or revoked in accordance with paragraph 7.

5.   The Commission shall publish the information referred to in paragraph 4 in a publicly available database, in an easily accessible and machine-readable format, and shall keep the database up to date.

6.   Where a provider of online_platforms has information indicating that a trusted flagger has submitted a significant number of insufficiently precise, inaccurate or inadequately substantiated notices through the mechanisms referred to in Article 16, including information gathered in connection to the processing of complaints through the internal complaint-handling systems referred to in Article 20(4), it shall communicate that information to the Digital Services Coordinator that awarded the status of trusted flagger to the entity concerned, providing the necessary explanations and supporting documents. Upon receiving the information from the provider of online_platforms, and if the Digital Services Coordinator considers that there are legitimate reasons to open an investigation, the status of trusted flagger shall be suspended during the period of the investigation. That investigation shall be carried out without undue delay.

7.   The Digital Services Coordinator that awarded the status of trusted flagger to an entity shall revoke that status if it determines, following an investigation either on its own initiative or on the basis information received from third parties, including the information provided by a provider of online_platforms pursuant to paragraph 6, that the entity no longer meets the conditions set out in paragraph 2. Before revoking that status, the Digital Services Coordinator shall afford the entity an opportunity to react to the findings of its investigation and its intention to revoke the entity’s status as trusted flagger.

8.   The Commission, after consulting the Board, shall, where necessary, issue guidelines to assist providers of online_platforms and Digital Services Coordinators in the application of paragraphs 2, 6 and 7.

1.   Where a crisis occurs, the Commission, acting upon a recommendation of the Board may adopt a decision, requiring one or more providers of very large online_platforms or of very large online_search_engines to take one or more of the following actions:

When identifying and applying measures pursuant to point (b) of this paragraph, the service provider or providers shall take due account of the gravity of the serious threat referred to in paragraph 2, of the urgency of the measures and of the actual or potential implications for the rights and legitimate interests of all parties concerned, including the possible failure of the measures to respect the fundamental rights enshrined in the Charter.

2.   For the purpose of this Article, a crisis shall be deemed to have occurred where extraordinary circumstances lead to a serious threat to public security or public health in the Union or in significant parts of it.

3.   When taking the decision referred to in paragraph 1, the Commission shall ensure that all of the following requirements are met:

4.   After adopting the decision referred to in paragraph 1, the Commission shall, without undue delay, take the following steps:

5.   The choice of specific measures to be taken pursuant to paragraph 1, point (b), and to paragraph 7, second subparagraph, shall remain with the provider or providers addressed by the Commission’s decision.

6.   The Commission may on its own initiative or at the request of the provider, engage in a dialogue with the provider to determine whether, in light of the provider’s specific circumstances, the intended or implemented measures referred to in paragraph 1, point (b), are effective and proportionate in achieving the objectives pursued. In particular, the Commission shall ensure that the measures taken by the service provider under paragraph 1, point (b), meet the requirements referred to in paragraph 3, points (a) and (c).

7.   The Commission shall monitor the application of the specific measures taken pursuant to the decision referred to in paragraph 1 of this Article on the basis of the reports referred to in point (c) of that paragraph and any other relevant information, including information it may request pursuant to Article 40 or 67, taking into account the evolution of the crisis. The Commission shall report regularly to the Board on that monitoring, at least on a monthly basis.

Where the Commission considers that the intended or implemented specific measures pursuant to paragraph 1, point (b), are not effective or proportionate it may, after consulting the Board, adopt a decision requiring the provider to review the identification or application of those specific measures.

8.   Where appropriate in view of the evolution of the crisis, the Commission, acting on the Board’s recommendation, may amend the decision referred to in paragraph 1 or in paragraph 7, second subparagraph, by:

9.   The requirements of paragraphs 1 to 6 shall apply to the decision and to the amendment thereof referred to in this Article.

10.   The Commission shall take utmost account of the recommendation of the Board issued pursuant to this Article.

11.   The Commission shall report to the European Parliament and to the Council on a yearly basis following the adoption of decisions in accordance with this Article, and, in any event, three months after the end of the crisis, on the application of the specific measures taken pursuant to those decisions.

1.   Providers of very large online_platforms or of very large online_search_engines shall publish the reports referred to in Article 15 at the latest by two months from the date of application referred to in Article 33(6), second subparagraph, and thereafter at least every six months.

2.   The reports referred to in paragraph 1 of this Article published by providers of very large online_platforms shall, in addition to the information referred to in Article 15 and Article 24(1), specify:

The reports shall be published in at least one of the official languages of the Member States.

3.   In addition to the information referred to in Articles 24(2), the providers of very large online_platforms or of very large online_search_engines shall include in the reports referred to in paragraph 1 of this Article the information on the average monthly recipients of the service for each Member State.

4.   Providers of very large online_platforms or of very large online_search_engines shall transmit to the Digital_Services_Coordinator_of_establishment and the Commission, without undue delay upon completion, and make publicly available at the latest three months after the receipt of each audit report pursuant to Article 37(4):

5.   Where a provider of very large online_platform or of very large online_search_engine considers that the publication of information pursuant to paragraph 4 might result in the disclosure of confidential information of that provider or of the recipients of the service, cause significant vulnerabilities for the security of its service, undermine public security or harm recipients, the provider may remove such information from the publicly available reports. In that case, the provider shall transmit the complete reports to the Digital_Services_Coordinator_of_establishment and the Commission, accompanied by a statement of the reasons for removing the information from the publicly available reports.

1.   The Board may recommend that the Commission initiate the drawing up, in accordance with paragraphs 2, 3 and 4, of voluntary crisis protocols for addressing crisis situations. Those situations shall be strictly limited to extraordinary circumstances affecting public security or public health.

2.   The Commission shall encourage and facilitate the providers of very large online_platforms, of very large online_search_engines and, where appropriate, the providers of other online_platforms or of other online_search_engines, to participate in the drawing up, testing and application of those crisis protocols. The Commission shall aim to ensure that those crisis protocols include one or more of the following measures:

3.   The Commission shall, as appropriate, involve Member States’ authorities, and may also involve Union bodies, offices and agencies in drawing up, testing and supervising the application of the crisis protocols. The Commission may, where necessary and appropriate, also involve civil society organisations or other relevant organisations in drawing up the crisis protocols.

4.   The Commission shall aim to ensure that the crisis protocols set out clearly all of the following:

5.   If the Commission considers that a crisis protocol fails to effectively address the crisis situation, or to safeguard the exercise of fundamental rights as referred to in paragraph 4, point (e), it shall request the participants to revise the crisis protocol, including by taking additional measures.

1.   Where needed in order to carry out their tasks under this Regulation, Digital Services Coordinators shall have the following powers of investigation, in respect of conduct by providers of intermediary_services falling within the competence of their Member State:

2.   Where needed for carrying out their tasks under this Regulation, Digital Services Coordinators shall have the following enforcement powers, in respect of providers of intermediary_services falling within the competence of their Member State:

As regards the first subparagraph, points (c) and (d), Digital Services Coordinators shall also have the enforcement powers set out in those points in respect of the other persons referred to in paragraph 1 for failure to comply with any of the orders issued to them pursuant to that paragraph. They shall only exercise those enforcement powers after providing those other persons in good time with all relevant information relating to such orders, including the applicable period, the fines or periodic payments that may be imposed for failure to comply and the possibilities for redress.

3.   Where needed for carrying out their tasks under this Regulation, Digital Services Coordinators shall, in respect of providers of intermediary_services falling within the competence of their Member State, where all other powers pursuant to this Article to bring about the cessation of an infringement have been exhausted and the infringement has not been remedied or is continuing and is causing serious harm which cannot be avoided through the exercise of other powers available under Union or national law, also have the power to take the following measures:

The Digital Services Coordinator shall, except where it acts upon the Commission’s request referred to in Article 82, prior to submitting the request referred to in the first subparagraph, point (b), of this paragraph invite interested parties to submit written observations within a period that shall not be less than two weeks, describing the measures that it intends to request and identifying the intended addressee or addressees thereof. The provider of intermediary_services, the intended addressee or addressees and any other third party demonstrating a legitimate interest shall be entitled to participate in the proceedings before the competent judicial authority. Any measure ordered shall be proportionate to the nature, gravity, recurrence and duration of the infringement, without unduly restricting access to lawful information by recipients of the service concerned.

The restriction of access shall be for a period of four weeks, subject to the possibility for the competent judicial authority, in its order, to allow the Digital Services Coordinator to extend that period for further periods of the same lengths, subject to a maximum number of extensions set by that judicial authority. The Digital Services Coordinator shall only extend the period where, having regard to the rights and interests of all parties affected by that restriction and all relevant circumstances, including any information that the provider of intermediary_services, the addressee or addressees and any other third party that demonstrated a legitimate interest may provide to it, it considers that both of the following conditions have been met:

Where the Digital Services Coordinator considers that the conditions set out in the third subparagraph, points (a) and (b), have been met but it cannot further extend the period pursuant to the third subparagraph, it shall submit a new request to the competent judicial authority, as referred to in the first subparagraph, point (b).

4.   The powers listed in paragraphs 1, 2 and 3 shall be without prejudice to Section 3.

5.   The measures taken by the Digital Services Coordinators in the exercise of their powers listed in paragraphs 1, 2 and 3 shall be effective, dissuasive and proportionate, having regard, in particular, to the nature, gravity, recurrence and duration of the infringement or suspected infringement to which those measures relate, as well as the economic, technical and operational capacity of the provider of the intermediary_services concerned where relevant.

6.   Member States shall lay down specific rules and procedures for the exercise of the powers pursuant to paragraphs 1, 2 and 3 and shall ensure that any exercise of those powers is subject to adequate safeguards laid down in the applicable national law in compliance with the Charter and with the general principles of Union law. In particular, those measures shall only be taken in accordance with the right to respect for private life and the rights of defence, including the rights to be heard and of access to the file, and subject to the right to an effective judicial remedy of all affected parties.

1.   Unless the Commission has initiated an investigation for the same alleged infringement, where a Digital_Services_Coordinator_of_destination has reason to suspect that a provider of an intermediary_service has infringed this Regulation in a manner negatively affecting the recipients of the service in the Member State of that Digital Services Coordinator, it may request the Digital_Services_Coordinator_of_establishment to assess the matter and to take the necessary investigatory and enforcement measures to ensure compliance with this Regulation.

2.   Unless the Commission has initiated an investigation for the same alleged infringement, and at the request of at least three Digital Services Coordinators of destination that have reason to suspect that a specific provider of intermediary_services infringed this Regulation in a manner negatively affecting recipients of the service in their Member States, the Board may request the Digital_Services_Coordinator_of_establishment to assess the matter and take the necessary investigatory and enforcement measures to ensure compliance with this Regulation.

3.   A request pursuant to paragraph 1 or 2 shall be duly reasoned, and shall at least indicate:

4.   The Digital_Services_Coordinator_of_establishment shall take utmost account of the request pursuant to paragraphs 1 or 2 of this Article. Where it considers that it has insufficient information to act upon the request and has reasons to consider that the Digital Services Coordinator that sent the request, or the Board, could provide additional information, the Digital_Services_Coordinator_of_establishment may either request such information in accordance with Article 57 or, alternatively, may launch a joint investigation pursuant to Article 60(1) involving at least the requesting Digital Services Coordinator. The period laid down in paragraph 5 of this Article shall be suspended until that additional information is provided or until the invitation to participate in the joint investigation is refused.

5.   The Digital_Services_Coordinator_of_establishment shall, without undue delay and in any event not later than two months following receipt of the request pursuant to paragraph 1 or 2, communicate to the Digital Services Coordinator that sent the request, and the Board, the assessment of the suspected infringement and an explanation of any investigatory or enforcement measures taken or envisaged in relation thereto to ensure compliance with this Regulation.

1.   In the absence of a communication within the period laid down in Article 58(5), in the case of a disagreement of the Board with the assessment or the measures taken or envisaged pursuant to Article 58(5) or in the cases referred to in Article 60(3), the Board may refer the matter to the Commission, providing all relevant information. That information shall include at least the request or recommendation sent to the Digital_Services_Coordinator_of_establishment, the assessment by that Digital Services Coordinator, the reasons for the disagreement and any additional information supporting the referral.

2.   The Commission shall assess the matter within two months following the referral of the matter pursuant to paragraph 1, after having consulted the Digital_Services_Coordinator_of_establishment.

3.   Where, pursuant to paragraph 2 of this Article, the Commission considers that the assessment or the investigatory or enforcement measures taken or envisaged pursuant to Article 58(5) are insufficient to ensure effective enforcement or otherwise incompatible with this Regulation, it shall communicate its views to the Digital_Services_Coordinator_of_establishment and the Board and request the Digital_Services_Coordinator_of_establishment to review the matter.

The Digital_Services_Coordinator_of_establishment shall take the necessary investigatory or enforcement measures to ensure compliance with this Regulation, taking utmost account of the views and request for review by the Commission. The Digital_Services_Coordinator_of_establishment shall inform the Commission, as well as the requesting Digital Services Coordinator or the Board that took action pursuant to Article 58(1) or (2), about the measures taken within two months from that request for review.

1.   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.

2.   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.

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

1.   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.

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

3.   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.

1.   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:

2.   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.

3.   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.

4.   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.

5.   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.

1.   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.

2.   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.

3.   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 shall keep the Board and the Digital Services Coordinators informed about the implementation of the action plan, and about its monitoring thereof.

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