European Parliament rejects consolidated text of the Digital Services Act

The last political trilogue on the Digital Services Act (DSA). [Council of the European Union]

This story was updated with a comment from MEP Christel Schaldemose.

A majority of MEPs has pushed back against the version of the Digital Services Act (DSA) that was ‘fine-tuned’ after the informal agreement that was reached in April, as in their view some crucial parts of the final text were not part of the agreement.

The representatives of the European People’s Party, Renew Europe, the Greens/EFA and the Left groups have all opposed the text that was sent from the French Presidency of the EU Council on Friday (10 June). The text was sent ahead of a vote planned in the Parliament’s internal market committee on 15 June.

The rejection escalates an interinstitutional conflict between the EU co-legislators that started a few weeks back. After a political agreement was achieved on 23 April, the file went back to the technical level to iron down the details.

However, several European Parliament officials involved on the file voiced frustration to EURACTIV that the rapporteur Christel Schaldemose did not involve them in finalising the text. Three weeks ago, the consolidated version was shared with the other MEPs, with two unpleasant surprises.

EU institutions reach agreement on Digital Services Act

European Union co-legislators reached an agreement on the Digital Services Act (DSA), flagship legislation that will reign in the digital sphere and step up the fight against illegal content and disinformation.

The show-stoppers

Both points of contention relate to the recitals, the preamble of the text that is not binding but contributes to its legal interpretation. The most controversial one is recital 28, which according to the lawmakers would introduce a so-called ‘stay-down clause’.

The paragraph in question states that online intermediary services should never be forced to general monitoring obligations, in other words, to check all the content on their platforms. However, the text adds, that should not prevent EU or national law from obliging the platforms to conduct specific monitoring for content that has been proven or it is manifestly illegal.

For MEPs, that equals to a massive carve-out to the ban on general monitoring, giving rightsholders the power to mandate platforms to be on the lookout for any copyright-infringing content or counterfeit goods.

“I have shown the text to several lawyers, and they all told me it does not consist in a stay-down clause,” an EU diplomat told EURACTIV, stressing that the recital only entails that flagged, illegal content cannot be reposted.

The recital was part of the official Council position before the beginning of the interinstitutional negotiations. However, it resurfaced after the political deal upon the insistence of Spain, Italy and France, in spite of the fact the Presidency would require Paris to play the role of the ‘honest broker’.

The second contention point relates to recital 29, which essentially introduces a carve-out for cross-border take-down orders of illegal content for online gambling websites. This wording was added at the request of Malta, several sources confirmed, as the country hosts most of the betting websites in the EU.

Animosity building up

When in mid-May MEPs were faced with these unexpected additions to the text, they pushed back and asked for the recitals to be modified. On Friday, the French Presidency came back with what the lawmakers merely considered aesthetical changes.

The new version of the text was not openly discussed with the other member states, but EURACTIV understands discussions have been ongoing with the most concerned countries bilaterally.

“France wants to avoid a fight in the Council and move it to the Parliament,” a parliamentary official told EURACTIV.

The Greens were the first to reject the text, followed by Renew and the Left. The social democrats led by Schaldemose went along with it, for fear of reopening the negotiations. Uncertainty followed as and it was not clear where the conservatives would stand, as they were determining to reach a majority.

“EPP believes that the Council’s changes in recital 28 do not reflect the political agreement, thus we want to see this modified. Whilst we don’t see a reason for the addition in recital 29, we accept this in spirit of compromise if changes are made to recital 28,” reads the decisive reply of EPP’s representative Arba Kokalari, seen by EURACTIV.

“I take note of the comments received from the colleagues. Finding compromises is always difficult – especially on such an important file for all of us. But I am confident we will find a solution,” MEP Schaldemose told EURACTIV.

Arba Kokalari declined to comment.

What happens next

The ball is now in the French Presidency’s court, which might either modify the recitals as the MEPs have asked or go ahead and ask the Committee of Permanent Representatives (COREPER) to adopt the text as it.

The second option would obviously escalate the matter even further, as the European Parliament might adopt its version of the text, without the Council’s recitals. If the two institutions adopt two different versions of the same legislation it would conclude the first reading.

The process would then have to be repeated in both institutions, but the Parliament is penalised as it needs a two-thirds majority to overrule the Council’s position. Still, that would entail delaying the adoption of the legislation by around six months.

Another alternative the French have is to do nothing until the Czech government will take over the presidency on 1 July, as then they would have their hands free and could be even more vocal in pushing the argument of rightsholders.

However, such a ‘wait and see’ approach is not without its dangers. “We can’t let it slide to Czech Presidency because then it risks all falling apart,” a second diplomat said.

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