By Pim ten Thije, Researcher at the DSA Observatory
Parallel with the publication of the final text of the Digital Services Act on October 27th 2022, the European Commission articulated its priorities for implementing the DSA. The EC will focus on the designation of VLOPs & VLOSEs, implementing procedural regulation and delivering delegated acts on the supervisory fees and independent external audits (see the table with timelines below). As many as four other implementing and delegated acts and five guidance documents will have a lower priority. In the eCommerce Expert Group on the 25th of October, the Member States’ lawmakers were briefed on the matter.
Priority Implementing and Delegated Acts
The European Commission is prioritising three regulatory initiatives to further detail the implementation of the DSA. The first is a more general implementing act to further detail procedural matters regarding the Commission’s investigatory and enforcement powers (Arts. 69-72), hearings (Art. 79) and information disclosures (Art. 79). This act was already officially announced and will be published for feedback before the end of 2022, formally adopted in February 2023, and enter into force in March 2023.
A second delegated act will detail the supervisory fee for VLOPs and VLOSEs. The act will “detail the methodology for estimating the costs, how the fees are determined, the threshold application and the details of the payment arrangements.” It is expected to be published for feedback already in November or December 2022. It is to be adopted in January or February 2023 and to enter into force either in May or June 2023.
Lastly, the EC prioritises the delegated act that lays down the procedure for the independent audits of VLOPs’ and VLOSEs’ risk assessments. The act will provide further details on the independence, necessary expertise and ethics of auditors and their cooling down periods (auditing firms may only audit a platform once every ten (!) years). The act will be published for consultation in February or March 2023 and enter into force in July 2023.
The table below shows an overview of the three priorities of the EC regarding implementing the DSA.
|Legal Instrument||Publication for feedback||Formal Adoption||Entry into Force|
|Implementing Regulation (Article 83)
||Implementing Act||Before the end of 2022 (4 weeks)||Feb 2023||Mar 2023|
|Supervisory Fee (Articles 43.3 & 43.4)||Implementing & Delegated act||Nov/Dec 2022 (4 weeks)||Jan/Feb 2023||May/June 2023|
|Independent Audits (Article 37)||Delegated act||Feb/Mar 2023 (4 weeks)||–||July 2023|
Low(er) Priority Acts & Guidance
The priority given to the three measures above means that several others are left with a lower priority. They will receive attention from the Commission starting the second or third quarter of 2023. Below, the remaining implementing acts, delegated acts and guidelines are split according to type:
- The information-sharing system between Digital Services Coordinators and the Commission (Article 85, implementing act)
- Transparency reporting template(s) (Articles 15 & 24, implementing act)
- Access to data for researchers (Article 40, delegated act)
- The methodology for calculating average monthly active recipients (Article 33, delegated act)
Guidelines & Guidance
- Trusted flaggers (Article 22)
- Dark patterns (Article 25)
- Protection of minors (Article 28)
- Specific risks related to risk mitigation (Article 35)
- Ad repositories (Article 39)
Pre-designation talks with VLOPs & VLOSEs
Currently, the Commission is already engaged with online platforms and search engines that will qualify as very large online platforms (VLOPs) or very large online search engines (VLOSEs). These are “purely informative and not determining designation” and there is a “need to raise awareness” with online platforms about their obligation to publish their “user numbers”. However, these conversations might provide these platforms with information about and guide the Commission’s decisions regarding the methodology of counting platforms’ average monthly active recipients (AMARs).
It will be interesting to see whether VLOPs and VLOSEs end up calculating their AMARs in the same way, taking in the off-the-record tips of the Commission. We will know once all online platforms publish their number of average recipients per article 24 on February 17th, 2023.