1. In the absence of a communication within the period laid down in Article 58(5), in the case of a disagreement of the Board with the assessment or the measures taken or envisaged pursuant to Article 58(5) or in the cases referred to in Article 60(3), the Board may refer the matter to the Commission, providing all relevant information. That information shall include at least the request or recommendation sent to the Digital Services Coordinator of establishment, the assessment by that Digital Services Coordinator, the reasons for the disagreement and any additional information supporting the referral.
2. The Commission shall assess the matter within two months following the referral of the matter pursuant to paragraph 1, after having consulted the Digital Services Coordinator of establishment.
3. Where the Commission considers that the assessment or the investigatory or enforcement measures are insufficient or not compatible with this Regulation, it shall communicate its views to the Digital Services Coordinator of establishment and the Board and request the Digital Services Coordinator of establishment to review the matter. The Digital Services Coordinator of establishment shall take the necessary investigatory or enforcement measures to ensure compliance with this Regulation, taking utmost account of the views and request for review by the Commission. The Digital Services Coordinator of establishment shall inform the Commission, as well as the requesting Digital Services Coordinator or the Board that took action pursuant to Article 58(1) or (2), about the measures taken within two months from that request for review.
Understanding This Article
Article 59 creates Commission oversight mechanism for cross-border DSA enforcement disputes, enabling Board to escalate cases where establishment DSCs fail to adequately respond to Article 58 destination DSC requests or joint investigation coordination breaks down. This provision addresses structural accountability gap in country of origin principle—establishment DSCs hold exclusive Article 56(1) jurisdiction but may face conflicts of interest (regulating major national employers/taxpayers), capacity constraints (small Member State DSCs supervising globally significant platforms), or enforcement philosophy differences from destination DSCs and Board majority. Article 59 transforms Board from mere coordinator into enforcement supervisor with Commission backstop, creating graduated pressure: Article 58 peer DSC request, Board-mediated multi-DSC request, Board referral to Commission triggering supranational review, ultimate Commission intervention through own Article 56 concurrent jurisdiction (VLOPs/VLOSEs) or Article 50 adequacy assessment (establishment DSC's independence/resources). Preserves Member State enforcement primacy while ensuring Community-level accountability.
Referral Triggers - Paragraph 1: Board may refer matters to Commission in three scenarios: (1) Establishment DSC non-response—'absence of communication within period laid down in Article 58(5)'—establishment DSC failed to provide required two-month response to Article 58 request, suggesting either capacity inadequacy or deliberate non-cooperation. (2) Board-DSC disagreement—'disagreement of Board with assessment or measures taken or envisaged pursuant to Article 58(5)'—establishment DSC responded but Board considers response inadequate (assessment dismissing credible violations without substantive analysis, enforcement measures insufficient relative to harm identified, legal interpretation conflicting with Board understanding of DSA requirements). (3) Joint investigation failures—'cases referred to in Article 60(3)'—Article 60 joint investigation coordination breakdowns requiring Commission intervention (discussed in Article 60 analysis). Referral content must include: request/recommendation sent to establishment DSC (original Article 58 destination DSC or Board request), establishment DSC's assessment if provided, Board's disagreement reasons (why response inadequate, which aspects problematic), supporting information (evidence, legal analysis, cross-border impact documentation).
Commission Assessment - Paragraphs 2-3: Commission assesses within two months after consulting establishment DSC, evaluating whether establishment DSC's response (or non-response) adequate. If Commission finds assessment or measures 'insufficient or not compatible with this Regulation,' communicates views to establishment DSC and Board requesting review. Establishment DSC must 'take utmost account' of Commission views, take necessary investigatory/enforcement measures, inform Commission and requesting parties within two months. Commission review is persuasive not binding—establishment DSC retains jurisdictional authority but risks further Commission action (Article 56 direct enforcement, Article 258 TFEU infringement proceedings, Article 50 adequacy review) if persistently ignoring Commission assessments.
Practical Application
Practical Application and Implementation Guidance for Article 59
Scenario 1: Cross-Border Illegal Content Enforcement Failure
Situation: A major social media platform established in Ireland systematically fails to remove hate speech targeting religious minorities, despite multiple complaints from users in France, Germany, and Poland. French, German, and Polish DSCs exercise Article 58 cross-border cooperation, requesting Ireland's DSC to investigate and enforce Articles 14 and 16 (notice-and-action and content moderation obligations). Ireland's DSC investigates but concludes the content constitutes protected speech under Irish constitutional law and does not violate DSA obligations, declining enforcement action.
Article 59 Application: French, German, and Polish DSCs bring the matter to the Board, arguing Ireland's legal analysis misinterprets DSA Article 14 and fails to account for the cross-border dimension of illegal hate speech. The Board deliberates and decides to invoke Article 59(1)(b) - disagreement with the DSC of establishment's assessment. The Board prepares a comprehensive referral to the Commission including: the original Article 58 requests from France, Germany, and Poland with evidence of illegal content; Ireland's assessment declining enforcement; detailed legal analysis explaining why Ireland's interpretation of Article 14 is incorrect; comparative analysis of how other Member States have addressed similar cases; and evidence of harm to users from the platform's failure to remove content.
Commission Assessment: The Commission receives the referral and consults with Ireland's DSC, which presents its constitutional law arguments for declining enforcement. The Commission conducts legal analysis concluding that while Irish constitutional protections for speech are important, they do not override DSA obligations prohibiting illegal hate speech as defined by EU law. The Commission communicates its views to Ireland's DSC under Article 59(4), explaining why enforcement is necessary and requesting Ireland to review its assessment. Ireland's DSC, facing Commission legal analysis and potential infringement proceedings if it continues non-enforcement, reopens the investigation and issues a cessation order to the platform requiring implementation of enhanced content moderation for hate speech.
Lessons: This scenario illustrates how Article 59 addresses situations where DSCs' interpretations of DSA obligations differ significantly due to national legal traditions. The escalation mechanism ensures EU-level consistency while respecting national enforcement autonomy. The Commission's legal expertise and political authority resolve interpretative disputes that cross-border cooperation alone cannot address.
Scenario 2: Failure to Communicate - DSC Non-Response
Situation: An e-commerce platform established in Bulgaria allegedly violates Article 22 (traceability of business users) by allowing sellers to list products without adequate identity verification, enabling sale of counterfeit goods affecting consumers across the EU. Italy's DSC, receiving numerous complaints, sends an Article 58 cross-border cooperation request to Bulgaria's DSC requesting investigation and enforcement. Despite the two-month deadline in Article 58(3), Bulgaria's DSC does not respond - it is severely under-resourced and overwhelmed with enforcement responsibilities, causing the Bulgarian DSC to prioritize domestic cases and ignore cross-border requests.
Article 59 Application: Italy's DSC brings the non-response to the Board's attention. The Board discusses the matter and determines that Bulgaria's complete failure to communicate violates Article 58 obligations and justifies Article 59(1)(a) referral for absence of communication. The Board documents the referral including: Italy's detailed Article 58 request; evidence that the two-month deadline has passed with no communication from Bulgaria; analysis of why the suspected infringement is serious and affects multiple Member States; information about Bulgaria DSC's resource constraints that may explain but do not justify non-response.
Commission Response: The Commission assesses the referral and concludes Bulgaria's failure to communicate undermines the cross-border cooperation framework. The Commission contacts Bulgaria's DSC directly, both requesting response to Italy's Article 58 request and inquiring about resource needs. The Commission discovers Bulgaria's DSC has only 5 staff members for an entire Member State's DSA enforcement. The Commission provides technical assistance and coordinates EU funding to help Bulgaria hire additional DSC staff, while also requesting Bulgaria to respond to Italy's pending request within one month. Bulgaria's DSC, with Commission support, finally investigates the e-commerce platform and issues enforcement orders for Article 22 compliance.
Lessons: This scenario shows Article 59 can address capacity problems as well as legal disagreements. When DSCs lack resources for adequate enforcement, Article 59 escalation can trigger Commission assistance beyond formal legal measures. It also illustrates the importance of resource adequacy for DSA enforcement effectiveness - legal frameworks mean little without capable implementing authorities.
Scenario 3: Joint Investigation Disputes - Article 60(3) Referral
Situation: A video-sharing platform established in the Netherlands faces allegations of inadequate child protection measures under Article 28 (mitigation of risks for minors). DSCs from Netherlands, Belgium, France, and Germany launch a joint investigation under Article 60. During the investigation, significant disputes emerge: Netherlands' DSC (leading the investigation) proposes accepting binding commitments under Article 51(2)(a) where the platform voluntarily implements improved age verification; however, Belgian, French, and German DSCs argue commitments are insufficient given the severity of violations and advocate for formal infringement findings and substantial fines under Article 52. The participating DSCs cannot reach consensus on enforcement approach.
Article 59 Application: Unable to resolve the enforcement approach dispute, the Belgian, French, and German DSCs request Board consideration. The Board reviews the joint investigation evidence and enforcement disagreement. Invoking Article 59(1) in relation to Article 60(3), the Board refers the matter to the Commission. The referral documents: the joint investigation findings showing serious Article 28 violations; Netherlands' proposed commitment procedure with details of platform's commitments; Belgian/French/German arguments for stronger enforcement; comparative analysis of similar cases where commitments proved inadequate vs. cases where they achieved compliance; legal analysis of when commitments are appropriate versus when formal infringement findings are necessary.
Commission Assessment and Resolution: The Commission reviews the referral and conducts its own assessment. It concludes that given the severity of child safety violations and the platform's VLOP status (subjecting it to Commission enforcement jurisdiction under Articles 66-74), Commission formal proceedings are appropriate. The Commission opens Article 66 proceedings against the platform, exercises its investigative powers to gather additional evidence, and ultimately issues an infringement decision with a fine representing 4% of global turnover plus specific remedial orders including mandatory age verification, content filtering for child safety, and independent monitoring. This resolution addresses the enforcement dispute among participating DSCs by elevating the case to Commission jurisdiction where the Commission's exclusive powers prevent further disagreement.
Lessons: This scenario illustrates Article 59's role in resolving enforcement disputes among DSCs participating in joint investigations. When national authorities cannot agree on appropriate enforcement approach, Commission escalation provides authoritative resolution. It also shows how Article 59 can facilitate Commission assumption of enforcement responsibility for VLOPs/VLOSEs when joint investigation reveals significant violations.
Strategic Guidance for Digital Services Coordinators
For DSCs of Destination Considering Board Referral:
- Document everything: Maintain comprehensive records of Article 58 requests, communications, evidence of infringements, and DSC of establishment responses. This documentation is essential for Board referrals.
- Engage the Board early: Informal discussions with Board members before formal referral can build consensus and ensure referrals have broad support.
- Assess alternatives: Consider whether continued bilateral engagement with DSC of establishment might resolve concerns without formal referral. Article 59 is escalation of last resort.
- Legal precision: Referrals require rigorous legal analysis. Ensure arguments are grounded in DSA text, relevant recitals, and general principles of EU law.
- Political considerations: Recognize that Board referrals may strain relationships with peer DSCs. Balance enforcement effectiveness against cooperation imperatives.
For DSCs of Establishment Facing Potential Referral:
- Respond timely and substantively: Many referrals arise from communication failures. Ensure Article 58 responses are thorough, within deadlines, and engage seriously with concerns raised.
- Explain reasoning clearly: When declining enforcement, provide detailed legal analysis so requesting DSCs and Board understand your position even if they disagree.
- Seek Board guidance: If unsure about legal interpretation or enforcement approach, request Board guidance before finalizing decisions. Proactive engagement can prevent escalation.
- Consider Commission views: If Commission involvement seems likely, consider how Commission might assess the situation and factor this into enforcement decisions.
- Resource transparency: If capacity constraints affect enforcement, communicate this to Board and Commission. Resource problems may trigger assistance rather than criticism.
For the Commission Handling Referrals:
- Thorough assessment: Commission views carry significant weight. Ensure assessments are comprehensive, legally sound, and procedurally fair.
- Balanced perspective: Consult meaningfully with DSC of establishment, not just accepting Board characterizations. Both sides deserve hearing.
- Clear communication: Commission Article 59(4) communications should clearly explain legal reasoning, specify what enforcement changes are necessary, and provide rationale.
- Follow-up monitoring: After requesting enforcement review, monitor DSC responses and be prepared to escalate to formal Commission enforcement if review is inadequate.
- Capacity support: When referrals reveal resource inadequacy, coordinate technical and financial assistance to strengthen DSC capabilities.
Impact on Service Providers
For providers of intermediary services, Article 59 has significant practical implications even though they are not direct participants in the referral process:
Uncertainty and Extended Timelines: When enforcement matters are referred to the Commission, resolution timelines extend. The initial Article 58 two-month deadline is followed by Commission two-month assessment, then potentially additional DSC review period, or Commission formal proceedings that can take months or years. Providers facing uncertain enforcement status during this extended period may struggle with business planning and compliance resource allocation.
More Stringent Enforcement: Commission involvement through Article 59 often results in stricter enforcement than DSCs might have pursued independently. The Commission tends to prioritize Single Market consistency and effective deterrence, potentially favoring stronger penalties and remedies than individual DSCs. Providers should recognize that Board referral often signals that consensus among multiple DSCs favors stronger enforcement.
Limited Direct Influence: Unlike direct enforcement proceedings where providers participate actively, Article 59 referrals occur among regulatory authorities. Providers have limited ability to influence Board deliberations or Commission assessments during the referral phase. Their primary influence point is when DSCs implement Commission-recommended enforcement measures, at which point normal procedural rights (right to be heard, access to file, judicial review) apply.
Reputational Impact: High-profile Article 59 referrals can attract media attention and public scrutiny, particularly when they involve major platforms and serious violations. Even if ultimate enforcement measures are modest, the escalation process itself can damage provider reputation and undermine user trust.
Conclusion: Article 59 as Enforcement Architecture Keystone
Article 59 represents a sophisticated balancing act in the DSA's enforcement architecture. It preserves Member State primary enforcement responsibility while ensuring EU-level oversight can correct failures and ensure consistency. The referral mechanism acknowledges that cross-border digital services require cross-border enforcement cooperation, but that cooperation sometimes breaks down requiring central intervention. By establishing clear procedures, information requirements, and timelines, Article 59 structures this intervention in ways that respect both national sovereignty and Single Market imperatives. Its success depends on Board willingness to invoke it when necessary, Commission responsiveness and legal rigor in assessments, and DSCs' commitment to implementing Commission recommendations in good faith. As DSA enforcement matures, Article 59 case law will establish precedents clarifying when escalation is appropriate and what enforcement standards the Commission expects, providing greater certainty for both regulators and regulated entities.