keyboard_tab Digital Service Act 2022/2065 EN

1.   Recipients of the service, including individuals or entities that have submitted notices, addressed by the decisions referred to in Article 20(1) shall be entitled to select any out-of-court dispute settlement body that has been certified in accordance with paragraph 3 of this Article in order to resolve disputes relating to those decisions, including complaints that have not been resolved by means of the internal complaint-handling system referred to in that Article.

Providers of online_platforms shall ensure that information about the possibility for recipients of the service to have access to an out-of-court dispute settlement, as referred to in the first subparagraph, is easily accessible on their online_interface, clear and user-friendly.

The first subparagraph is without prejudice to the right of the recipient_of_the_service concerned to initiate, at any stage, proceedings to contest those decisions by the providers of online_platforms before a court in accordance with the applicable law.

2.   Both parties shall engage, in good faith, with the selected certified out-of-court dispute settlement body with a view to resolving the dispute.

Providers of online_platforms may refuse to engage with such out-of-court dispute settlement body if a dispute has already been resolved concerning the same information and the same grounds of alleged illegality or incompatibility of content.

The certified out-of-court dispute settlement body shall not have the power to impose a binding settlement of the dispute on the parties.

3.   The Digital Services Coordinator of the Member State where the out-of-court dispute settlement body is established shall, for a maximum period of five years, which may be renewed, certify the body, at its request, where the body has demonstrated that it meets all of the following conditions:

(a)	it is impartial and independent, including financially independent, of providers of online_platforms and of recipients of the service provided by providers of online_platforms, including of individuals or entities that have submitted notices;

(b)

it has the necessary expertise in relation to the issues arising in one or more particular areas of illegal_content, or in relation to the application and enforcement of terms_and_conditions of one or more types of online_platform, allowing the body to contribute effectively to the settlement of a dispute;

(c)	its members are remunerated in a way that is not linked to the outcome of the procedure;

(d)	the out-of-court dispute settlement that it offers is easily accessible, through electronic communications technology and provides for the possibility to initiate the dispute settlement and to submit the requisite supporting documents online;

(e)	it is capable of settling disputes in a swift, efficient and cost-effective manner and in at least one of the official languages of the institutions of the Union;

(f)	the out-of-court dispute settlement that it offers takes place in accordance with clear and fair rules of procedure that are easily and publicly accessible, and that comply with applicable law, including this Article.

The Digital Services Coordinator shall, where applicable, specify in the certificate:

(a)	the particular issues to which the body’s expertise relates, as referred to in point (b) of the first subparagraph; and

(b)	the official language or languages of the institutions of the Union in which the body is capable of settling disputes, as referred to in point (e) of the first subparagraph.

4.   Certified out-of-court dispute settlement bodies shall report to the Digital Services Coordinator that certified them, on an annual basis, on their functioning, specifying at least the number of disputes they received, the information about the outcomes of those disputes, the average time taken to resolve them and any shortcomings or difficulties encountered. They shall provide additional information at the request of that Digital Services Coordinator.

Digital Services Coordinators shall, every two years, draw up a report on the functioning of the out-of-court dispute settlement bodies that they certified. That report shall in particular:

(a)	list the number of disputes that each certified out-of-court dispute settlement body has received annually;

(b)	indicate the outcomes of the procedures brought before those bodies and the average time taken to resolve the disputes;

(c)	identify and explain any systematic or sectoral shortcomings or difficulties encountered in relation to the functioning of those bodies;

(d)	identify best practices concerning that functioning;

(e)	make recommendations as to how to improve that functioning, where appropriate.

Certified out-of-court dispute settlement bodies shall make their decisions available to the parties within a reasonable period of time and no later than 90 calendar days after the receipt of the complaint. In the case of highly complex disputes, the certified out-of-court dispute settlement body may, at its own discretion, extend the 90 calendar day period for an additional period that shall not exceed 90 days, resulting in a maximum total duration of 180 days.

5.   If the out-of-court dispute settlement body decides the dispute in favour of the recipient_of_the_service, including the individual or entity that has submitted a notice, the provider of the online_platform shall bear all the fees charged by the out-of-court dispute settlement body, and shall reimburse that recipient, including the individual or entity, for any other reasonable expenses that it has paid in relation to the dispute settlement. If the out-of-court dispute settlement body decides the dispute in favour of the provider of the online_platform, the recipient_of_the_service, including the individual or entity, shall not be required to reimburse any fees or other expenses that the provider of the online_platform paid or is to pay in relation to the dispute settlement, unless the out-of-court dispute settlement body finds that that recipient manifestly acted in bad faith.

The fees charged by the out-of-court dispute settlement body to the providers of online_platforms for the dispute settlement shall be reasonable and shall in any event not exceed the costs incurred by the body. For recipients of the service, the dispute settlement shall be available free of charge or at a nominal fee.

Certified out-of-court dispute settlement bodies shall make the fees, or the mechanisms used to determine the fees, known to the recipient_of_the_service, including to the individuals or entities that have submitted a notice, and to the provider of the online_platform concerned, before engaging in the dispute settlement.

6.   member states may establish out-of-court dispute settlement bodies for the purposes of paragraph 1 or support the activities of some or all out-of-court dispute settlement bodies that they have certified in accordance with paragraph 3.

Member States shall ensure that any of their activities undertaken under the first subparagraph do not affect the ability of their Digital Services Coordinators to certify the bodies concerned in accordance with paragraph 3.

7.   A Digital Services Coordinator that has certified an out-of-court dispute settlement body shall revoke that certification if it determines, following an investigation either on its own initiative or on the basis of the information received by third parties, that the out-of-court dispute settlement body no longer meets the conditions set out in paragraph 3. Before revoking that certification, the Digital Services Coordinator shall afford that body an opportunity to react to the findings of its investigation and its intention to revoke the out-of-court dispute settlement body’s certification.

8.   Digital Services Coordinators shall notify to the Commission the out-of-court dispute settlement bodies that they have certified in accordance with paragraph 3, including where applicable the specifications referred to in the second subparagraph of that paragraph, as well as the out-of-court dispute settlement bodies the certification of which they have revoked. The Commission shall publish a list of those bodies, including those specifications, on a dedicated website that is easily accessible, and keep it up to date.

9.   This Article is without prejudice to Directive 2013/11/EU and alternative dispute resolution procedures and entities for consumers established under that Directive.

1.   member states shall designate one or more competent authorities to be responsible for the supervision of providers of intermediary_services and enforcement of this Regulation (‘competent authorities’).

2.   member states shall designate one of the competent authorities as their Digital Services Coordinator. The Digital Services Coordinator shall be responsible for all matters relating to supervision and enforcement of this Regulation in that Member State, unless the Member State concerned has assigned certain specific tasks or sectors to other competent authorities. The Digital Services Coordinator shall in any event be responsible for ensuring coordination at national level in respect of those matters and for contributing to the effective and consistent supervision and enforcement of this Regulation throughout the Union.

For that purpose, Digital Services Coordinators shall cooperate with each other, other national competent authorities, the Board and the Commission, without prejudice to the possibility for Member States to provide for cooperation mechanisms and regular exchanges of views between the Digital Services Coordinator and other national authorities where relevant for the performance of their respective tasks.

Where a Member State designates one or more competent authorities in addition to the Digital Services Coordinator, it shall ensure that the respective tasks of those authorities and of the Digital Services Coordinator are clearly defined and that they cooperate closely and effectively when performing their tasks.

3.   member states shall designate the Digital Services Coordinators by 17 February 2024.

Member States shall make publicly available, and communicate to the Commission and the Board, the name of their competent authority designated as Digital Services Coordinator and information on how it can be contacted. The Member State concerned shall communicate to the Commission and the Board the name of the other competent authorities referred to in paragraph 2, as well as their respective tasks.

4.   The provisions applicable to Digital Services Coordinators set out in Articles 50, 51 and 56 shall also apply to any other competent authorities that the Member States designate pursuant to paragraph 1 of this Article.

1.   member states shall ensure that their Digital Services Coordinators perform their tasks under this Regulation in an impartial, transparent and timely manner. Member States shall ensure that their Digital Services Coordinators have all necessary resources to carry out their tasks, including sufficient technical, financial and human resources to adequately supervise all providers of intermediary_services falling within their competence. Each Member State shall ensure that its Digital Services Coordinator has sufficient autonomy in managing its budget within the budget's overall limits, in order not to adversely affect the independence of the Digital Services Coordinator.

2.   When carrying out their tasks and exercising their powers in accordance with this Regulation, the Digital Services Coordinators shall act with complete independence. They shall remain free from any external influence, whether direct or indirect, and shall neither seek nor take instructions from any other public authority or any private party.

3.   Paragraph 2 of this Article is without prejudice to the tasks of Digital Services Coordinators within the system of supervision and enforcement provided for in this Regulation and the cooperation with other competent authorities in accordance with Article 49(2). Paragraph 2 of this Article shall not prevent the exercise of judicial review and shall also be without prejudice to proportionate accountability requirements regarding the general activities of the Digital Services Coordinators, such as financial expenditure or reporting to national parliaments, provided that those requirements do not undermine the achievement of the objectives of this Regulation.

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:

(a)

the power to require those providers, as well as any other persons acting for purposes related to their trade, business, craft or profession that may reasonably be aware of information relating to a suspected infringement of this Regulation, including organisations performing the audits referred to in Article 37 and Article 75(2), to provide such information without undue delay;

(b)

the power to carry out, or to request a judicial authority in their Member State to order, inspections of any premises that those providers or those persons use for purposes related to their trade, business, craft or profession, or to request other public authorities to do so, in order to examine, seize, take or obtain copies of information relating to a suspected infringement in any form, irrespective of the storage medium;

(c)	the power to ask any member of staff or representative of those providers or those persons to give explanations in respect of any information relating to a suspected infringement and to record the answers with their consent by any technical means.

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:

(a)	the power to accept the commitments offered by those providers in relation to their compliance with this Regulation and to make those commitments binding;

(b)	the power to order the cessation of infringements and, where appropriate, to impose remedies proportionate to the infringement and necessary to bring the infringement effectively to an end, or to request a judicial authority in their Member State to do so;

(c)	the power to impose fines, or to request a judicial authority in their Member State to do so, in accordance with Article 52 for failure to comply with this Regulation, including with any of the investigative orders issued pursuant to paragraph 1 of this Article;

(d)

the power to impose a periodic penalty payment, or to request a judicial authority in their Member State to do so, in accordance with Article 52 to ensure that an infringement is terminated in compliance with an order issued pursuant to point (b) of this subparagraph or for failure to comply with any of the investigative orders issued pursuant to paragraph 1 of this Article;

(e)	the power to adopt interim measures or to request the competent national judicial authority in their Member State to do so, to avoid the risk of serious harm.

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:

(a)	to require the management body of those providers, without undue delay, to examine the situation, adopt and submit an action plan setting out the necessary measures to terminate the infringement, ensure that the provider takes those measures, and report on the measures taken;

(b)

where the Digital Services Coordinator considers that a provider of intermediary_services has not sufficiently complied with the requirements referred to in point (a), that the infringement has not been remedied or is continuing and is causing serious harm, and that that infringement entails a criminal offence involving a threat to the life or safety of persons, to request that the competent judicial authority of its Member State order the temporary restriction of access of recipients to the service concerned by the infringement or, only where that is not technically feasible, to the online_interface of the provider of intermediary_services on which the infringement takes place.

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:

(a)	the provider of intermediary_services has failed to take the necessary measures to terminate the infringement;

(b)	the temporary restriction does not unduly restrict access to lawful information by recipients of the service, having regard to the number of recipients affected and whether any adequate and readily accessible alternatives exist.

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.   member states shall lay down the rules on penalties applicable to infringements of this Regulation by providers of intermediary_services within their competence and shall take all the necessary measures to ensure that they are implemented in accordance with Article 51.

2.   Penalties shall be effective, proportionate and dissuasive. Member States shall notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendments affecting them.

3.   member states shall ensure that the maximum amount of fines that may be imposed for a failure to comply with an obligation laid down in this Regulation shall be 6 % of the annual worldwide turnover of the provider of intermediary_services concerned in the preceding financial year. Member States shall ensure that the maximum amount of the fine that may be imposed for the supply of incorrect, incomplete or misleading information, failure to reply or rectify incorrect, incomplete or misleading information and failure to submit to an inspection shall be 1 % of the annual income or worldwide turnover of the provider of intermediary_services or person concerned in the preceding financial year.

4.   member states shall ensure that the maximum amount of a periodic penalty payment shall be 5 % of the average daily worldwide turnover or income of the provider of intermediary_services concerned in the preceding financial year per day, calculated from the date specified in the decision concerned.

1.   The Member State in which the main establishment of the provider of intermediary_services is located shall have exclusive powers to supervise and enforce this Regulation, except for the powers provided for in paragraphs 2, 3 and 4.

2.   The Commission shall have exclusive powers to supervise and enforce Section 5 of Chapter III.

3.   The Commission shall have powers to supervise and enforce this Regulation, other than those laid down in Section 5 of Chapter III thereof, against providers of very large online_platforms and of very large online_search_engines.

4.   Where the Commission has not initiated proceedings for the same infringement, the Member State in which the main establishment of the provider of very large online_platform or of very large online_search_engine is located shall have powers to supervise and enforce the obligations under this Regulation, other than those laid down in Section 5 of Chapter III, with respect to those providers.

5.   member states and the Commission shall supervise and enforce the provisions of this Regulation in close cooperation.

6.   Where a provider of intermediary_services does not have an establishment in the Union, the Member State where its legal representative resides or is established or the Commission shall have powers, as applicable, in accordance with paragraphs 1 and 4 of this Article, to supervise and enforce the relevant obligations under this Regulation.

7.   Where a provider of intermediary_services fails to appoint a legal representative in accordance with Article 13, all Member States and, in case of a provider of a very large online_platform or very large online_search_engine, the Commission shall have powers to supervise and enforce in accordance with this Article.

Where a Digital Services Coordinator intends to exercise its powers under this paragraph, it shall notify all other Digital Services Coordinators and the Commission, and ensure that the applicable safeguards afforded by the Charter are respected, in particular to avoid that the same conduct is sanctioned more than once for the infringement of the obligations laid down in this Regulation. Where the Commission intends to exercise its powers under this paragraph, it shall notify all other Digital Services Coordinators of that intention. Following the notification pursuant to this paragraph, other Member States shall not initiate proceedings for the same infringement as that referred to in the notification.

1.   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.

2.   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.

3.   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.

4.   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.