LegalizeCommission Implementing Regulation (EU) 2023/1201 of 21 June 2023 on detailed arrangements for the conduct of certain proceedings by the Commission pursuant to Regulation (EU) 2022/2065 of the European Parliament and of the Council (‘Digital Services Act’)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to 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) (1), and, in particular, Article 83, first paragraph, points (a), (b) and (c) thereof,
After inviting all interested parties to submit their comments,
After consulting the Digital Services Committee,
Whereas:
(1) Regulation (EU) 2022/2065 empowers the Commission to adopt implementing acts concerning the practical arrangements in respect of certain aspects of proceedings under that Regulation. In compliance with the principle of good administration and the principle of legal certainty, it is necessary to lay down rules concerning the powers of the Commission to conduct inspections pursuant to Article 69 of Regulation (EU) 2022/2065 and to take the necessary monitoring actions pursuant to Article 72 of that Regulation. It is also necessary to lay down rules concerning the exercise of the right to be heard by the addressees of the Commission’s preliminary findings and access to the Commission’s file provided by Article 79 of Regulation (EU) 2022/2065.
(2) In the context of inspections, Article 69(2)(f) and (g) of Regulation (EU) 2022/2065 empowers Commission officials and other accompanying persons authorised by the Commission to conduct an inspection, to ask any representative or member of staff of the provider of very large online platform or of very large online search engine concerned or, where applicable, of the other persons concerned referred to in Article 67(1) of that Regulation for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers. In the same context of inspections, Article 69(2)(g) of Regulation (EU) 2022/2065 empowers Commission officials and other accompanying persons authorised by the Commission to address questions to any such representative or member of staff relating to the subject-matter and purpose of the inspection and to record the answers. Pursuant to Article 74(2)(c) of Regulation (EU) 2022/2065 fines may be imposed on such providers or such persons where they fail to rectify within the time period set by the Commission an incorrect, incomplete or misleading answer given by a representative or member of their staff to questions in the course of an inspection. It is therefore necessary to provide such providers and such persons with a record of any explanations given and to establish a procedure enabling them to rectify, amend or supplement explanations given, including by a representative or member of staff who has given such explanations but was not authorised to do so. Explanations given by a representative or a member of staff should remain in the Commission’s file as recorded during the inspection.
(3) Pursuant to Article 72 of Regulation (EU) 2022/2065, the Commission may take the necessary actions to monitor the effective implementation of and compliance with that Regulation. To this end, the Commission should be able to order providers of very large online platforms and of very large online search engines to provide access to and explanations of their databases and algorithms, where this is necessary to ensure effective compliance with Regulation (EU) 2022/2065. Access to such databases may consist of enabling the Commission to search such databases through the use of queries, as needed to monitor the effective implementation and compliance with Regulation (EU) 2022/2065. For the purposes of this regulation, the term database should be interpreted as referring to any relevant data assets available to the provider of very large online platform or of very large online search engine concerned, regardless of whether these are accessible in a single database. When ordering such access for purposes of monitoring, the Commission should also be able to specify technical interfaces that can facilitate access to databases and algorithms, such as Application Programmable Interfaces (APIs) or other means of technical access, including real time access and/or means of accessing high volumes of data. In this context, the Commission should also be able to require such providers to retain necessary documents, under the terms determined by the Commission. To ensure that the Commission possesses the necessary knowledge and expertise in carrying out its tasks under Regulation (EU) 2022/2065, the Commission should be able to appoint external experts and auditors to assist it in the exercise of its supervisory tasks. Such experts and auditors should be independent from the provider concerned and possess the necessary expertise and knowledge to assist the Commission. To this end, it is necessary to lay down requirements on the independence and expertise of such experts and auditors.
(4) Article 79(1) of Regulation (EU) 2022/2065 requires the Commission, before adopting a decision pursuant to Articles 73(1), 74 or 76 of that Regulation, to give a provider of very large online platform or of a very large online search engine or another person referred to in Article 67(1) of Regulation (EU) 2022/2065 to whom it has notified preliminary findings the opportunity of being heard on those findings and on measures that the Commission may intend to take in view of those findings. Such providers and such persons should present their views in writing, within a time period set by the Commission, with a view to reconciling the efficiency and effectiveness of the proceedings, on one hand, and the possibility to exercise the right to be heard, on the other. The addressee of the preliminary findings should have the right to set out succinctly the relevant facts and provide supporting evidence. In order to ensure fair and efficient proceedings, the effective and full enforcement of Regulation (EU) 2022/2065, and legal certainty for all persons concerned, it is necessary to set out rules as regards the format and maximum length of written observations and the use of languages.
(5) Article 79(4) of Regulation (EU) 2022/2065 requires the Commission to grant access to its file to the parties concerned by its proceedings. While the addressee of the preliminary findings should always obtain from the Commission the non-confidential versions of all documents mentioned in the preliminary findings, the Commission should be able to decide on a case-by-case basis on the appropriate procedure for access to further information in the file. When granting access to the file, the Commission should ensure the protection of business secrets and other confidential information. The Commission should be able to request persons that submit or have submitted information or documents in the course of proceedings to identify business secrets or other confidential information. The Commission should, before making this information available to the addressee of its preliminary findings, assess for each individual document whether, with view to an effective exercise of the right to be heard, the need to disclose is greater than the harm to the person who submitted the information or documents which might result from disclosure,
HAS ADOPTED THIS REGULATION:
CHAPTER I
SCOPE
Article 1
Subject matter and scope
This Regulation lays down rules concerning practical arrangements for:
(a) inspections conducted pursuant to Article 69 Regulation (EU) 2022/2065 and monitoring actions adopted pursuant to Article 72 of that Regulation;
(b) the exercise of the right to be heard and the terms of disclosure provided for in Article 79 of Regulation (EU) 2022/2065.
CHAPTER II
INSPECTIONS AND MONITORING ACTIONS BY THE COMMISSION
Article 2
Explanations provided during inspections
Explanations requested by the Commission or accompanying persons pursuant to Article 69(2), points (f) and (g), of Regulation (EU) 2022/2065 shall be given only by authorised representatives or members of staff of a provider of very large online platform, provider of very large online search engine, or, where applicable, of other persons referred to in Article 67(1) of that Regulation. The explanations given may be recorded by Commission’s officials or accompanying persons in any form.
After the inspection, a copy of any recording made pursuant to paragraph 1 shall be made available to the provider of very large online platform, the provider of very large online search engine or to other person referred to in Article 67(1) of Regulation (EU) 2022/2065 concerned by that inspection.
In cases where a representative or a member of staff referred to in paragraph 1 has been asked for and given explanations, but that representative or that member of staff was not authorised to provide explanations on behalf of the provider or of the person concerned, the Commission shall set a time limit within which the provider or person concerned may communicate to the Commission any rectification, amendment or supplement to the explanations given by that representative or that member of staff. The rectification, amendment or supplement shall be added to the explanations recorded pursuant to paragraph 1 of this Article.
The possibility for the provider of very large online platform, provider of very large online search engine, or, where applicable, or other persons referred to in Article 67(1) of Regulation (EU) 2022/2065 to communicate to the Commission rectifications, amendments or supplementary information to explanations given pursuant to paragraph 3 shall be without prejudice to the power of the Commission to impose fines and periodic penalty payments in accordance with Articles 74 and 76 of Regulation (EU) 2022/2065 respectively.
Article 3
Monitoring actions
Where the Commission orders a provider of very large online platforms or of very large online search engine to grant it access to that provider’s databases or algorithmic systems pursuant to Article 72(1) of Regulation (EU) 2022/2065, the Commission may specify the technical means or the interfaces through which providers of very large online platforms or of very large online search engines shall provide such access.
Providers of very large online platforms or of very large online search engine ordered to provide access pursuant to Article 72(1) of Regulation (EU) 2022/2065 shall do so in a timely and effective manner, enabling the Commission to access all information in the databases concerned and all information in relation to the algorithm concerned which are necessary for the assessment of the implementation of and compliance by the provider concerned with Regulation (EU) 2022/2065.
Providers of very large online platforms or of very large online search engine ordered to provide access pursuant to Article 72(1) of Regulation (EU) 2022/2065 shall comply with the requirements laid down in Article 7 of this Regulation.
Where the Commission imposes an obligation on a provider of very large online platforms or of very large online search engine to retain all documents necessary to assess the implementation of and compliance with Regulation (EU) 2022/2065 pursuant to Article 72(1) of that regulation, the Commission shall define the terms of retention, including the period and scope of documents to be retained for which the obligation applies. That period may be prolonged, where necessary, to assess the implementation of and compliance with Regulation (EU) 2022/2065.
Where the Commission appoints external experts or auditors to assist it in monitoring the effective implementation of and compliance with Regulation (EU) 2022/2065 by providers of very large online platforms and of very large online search engines pursuant to Article 72(2) of that regulation, the Commission shall ensure that those experts and auditors are independent from the provider concerned and that they have proven expertise and knowledge in the matter on which they assist the Commission.
To ensure independence in accordance with paragraph 5, the Commission, when appointing experts or auditors pursuant to that paragraph, shall take into account the existence of shared ownership, governance, management, personnel, or resources of the external experts or auditors concerned and the existence of contractual relationships with the provider of very large online platform or of very large online search engine concerned over the 24 months prior to procedure carried out by the Commission. The appointed expert or auditor shall remain independent throughout the period of appointment.
To ensure that the experts and auditors possess the necessary expertise and knowledge in accordance with paragraph 5, the Commission, when appointing an expert or an auditor pursuant to that paragraph, shall take into account the expert’s proven expertise in the matter on which they assist the Commission or the auditor’s proven technical competence to perform audits on the matter on which they assist the Commission.
CHAPTER III
RIGHT TO BE HEARD AND ACCESS TO THE FILE
Article 4
Written observations on preliminary findings
The addressee of preliminary findings communicated pursuant to Articles 73(2), 74(3) and 76 of Regulation (EU) 2022/2065 may, within a time limit set by the Commission, succinctly and in accordance with the format and length requirements for documents set out in the Annex to this Regulation, inform the Commission of its views in writing on those findings and on measures the Commission may intend to take in view of those findings and submit evidence in support thereof. The Commission shall not be obliged to take account of written observations received after the expiry of that time-limit.
Information submitted to the Commission pursuant to paragraph 1 shall be correct, complete and not misleading. It shall be presented in a clear, well-structured and intelligible manner.
The written observations referred to in paragraph 1 shall be in one of the official languages of the Union. Supporting documents shall be submitted in their original language and, where their original language is not one of the official languages of the Union, they shall be accompanied by a faithful translation into an official language of the Union.
The written observations referred to in paragraph 1 shall comply with the format and page limits set out in the Annex to this Regulation. The Commission may, upon reasoned request, authorise an addressee of preliminary findings to exceed those page limits where and to the extent that addressee substantiates that it is objectively impossible or exceedingly difficult to deal with particularly complex legal or factual issues within the maximum page limits.
Documents, databases or any other information shall be submitted to the Commission in accordance with Article 7 of this Regulation.
Information submitted to the Commission pursuant to paragraph 1 shall be accompanied by written proof that the persons submitting that information are authorised to act on behalf of the addressee of the preliminary findings concerned.
The Commission shall acknowledge, without delay and in writing, to the addressee of the preliminary findings concerned or to its representatives receipt of information submitted pursuant to paragraph 1.
Article 5
Access to the file
Upon request, the Commission shall grant access to the file to the addressee of the preliminary findings communicated pursuant to Articles 73(2), 74(3) or 76 of Regulation (EU) 2022/2065 (‘the addressee’). Access to the file shall not be granted before the notification of the preliminary findings.
When providing access to file, the Commission shall provide the addressee with all documents mentioned in the preliminary findings, subject to redactions that have been made by pursuant to Article 6 to protect business secrets or other confidential information.
Without prejudice to paragraph 4, the Commission shall also provide access to all documents on its file, without any redactions, under terms of disclosure to be set out in a Commission decision. The terms of disclosure shall be determined in accordance with the following:
(a) Access to documents shall only be granted to a limited number of specified external legal and economic counsel and external technical experts engaged by the addressee and whose names shall be communicated to the Commission in advance.
(b) The specified external legal and economic counsel and external technical experts must be undertakings, employees of undertakings or in a situation comparable to that of employees of undertakings. All of them shall be bound by the terms of disclosure.
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