The Slovenian Presidency has advanced an enforcement structure that would give stronger intervention powers to the European Commission in the context of the proposed Digital Services Act (DSA) package.
The European Commission presented the package in December 2020. It contains the Digital Services Act and the Digital Markets Act and will also update the 2000 e-Commerce Directive.
Slovenia’s proposal related to the latter followed a series of heated discussions on the country of origin principle, one of its core foundations.
The principle provides that the authority where the relevant organization is legally based should be where enforcement is carried out. But the Slovenians will push for greater enforcement capabilities to be afforded to the Commission.
The Commission would intervene upon request of the competent national authority, or should the latter misinterpret the DSA. In these cases, the EU executive would lead the direct interventions but only against very large online platforms, which under the DSA have specific obligations.
Joint investigations are also accounted for voluntarily and informally. The text does not include specific rules on exchanging information between the leading authorities and authorities in other countries.
The objective of the presidency text is to “avoid enforcement deadlocks” through an “expanded toolbox for different scenarios,” according to an internal presentation seen by EURACTIV.
For the presidency, the new provisions provide additional options for direct enforcement while maintaining the country of origin principle and ensuring consistent enforcement.
In case of disputes, the Commission assesses the legality and effectiveness of the leading authorities’ decisions. Brussels is to take over the case if the leading authority does not address the Commission’s “serious doubts” in cross-border disputes or if a recommendation to initiate a proceeding is not followed up.
For time-sensitive cases where serious harm is at stake, three national authorities can ask their peers gathered in the European Board for Digital Services to mandate the Commission to intervene directly.
“It doesn’t quite do the trick,” a second diplomatic source told EURACTIV, arguing that the compromise does not solve the debate initiated by France on the further involvement of non-leading national authorities.
“It also doesn’t preserve the country of origin principle either because it creates complex procedures which can be twisted in a bad way,” the second source added.
France has been advocating for a revision of the principle, asking for a stronger involvement of other national authorities. Large member states such as Germany, Spain, and Italy support the French proposal, EURACTIV has learned.
The argument particularly points to the shortcoming of the GDPR enforcement architecture, which is highly dependent on the authorities of Ireland and Luxembourg, where many companies have their headquarters.
Ireland responded to the French initiative with a non-paper signed by ten EU countries in defence of the country of origin principle, which is intended to reduce the administrative burden of companies by only referring to one authority across the entire bloc.
Ireland’s push has also gained traction, as the Netherlands and Belgium expressed their support last week, according to an EU diplomatic source close to the matter.
The country of origin and enforcement issues have taken centre stage of the DSA discussions in the European Council, overshadowing other points such as content moderation. The Slovenian Presidency is set to present new compromise text later this week.
[Edited by Alice Taylor]