Practical Application

Practical Application and Implementation Guidance for Article 60

Case Study 1: VLOP Joint Investigation - Algorithmic Amplification of Harmful Content

Scenario: A major social media platform (VLOP status) faces allegations that its recommender system algorithmically amplifies health misinformation, contributing to declining vaccination rates across Europe. DSCs from France, Germany, Italy, Spain, and Poland receive thousands of user complaints and evidence from public health authorities about viral spread of anti-vaccine content. While the platform is established in Ireland, the cross-border harm affects the entire EU.

Joint Investigation Launch: France, Germany, and Italy formally request the Board to recommend a joint investigation under Article 60(1)(b). The Board, finding reasonable suspicion of Article 35 (systemic risk mitigation for VLOPs) violations, recommends Ireland's DSC launch a joint investigation. Ireland agrees and invites all interested DSCs to participate. Seven DSCs (Ireland, France, Germany, Italy, Spain, Poland, and Netherlands) form the joint investigation team, with Ireland as lead investigator.

Investigation Planning (Month 1): The participating DSCs hold an initial coordination meeting establishing investigation structure:

• Ireland's DSC leads overall coordination and serves as primary contact with the platform
• France and Germany lead technical analysis of recommender system algorithms
• Italy and Spain focus on evidence gathering from public health authorities about harm causation
• Poland and Netherlands review the platform's Article 34 risk assessment documentation
• All participating DSCs share evidence and analysis through secure shared workspace
• Timeline: conclude investigation within 3 months, communicate preliminary position within 1 month after

Coordinated Evidence Gathering (Months 1-2): Ireland issues Article 51(1)(a) information requests requiring the platform to provide:

• Complete documentation of recommender system design and operation
• Internal communications about content amplification strategies
• Data on reach and engagement metrics for health misinformation content
• Article 34 systemic risk assessments for health misinformation
• Article 35 risk mitigation measures implemented or considered

France and Germany, under Article 60(5), exercise investigative powers in their territories to gather evidence from:

• Public health authorities documenting vaccination rate declines correlated with viral misinformation
• Researchers studying algorithmic amplification patterns
• Platform users who can provide testimony about algorithmic recommendations they received

All evidence is shared with the joint investigation team through the secure workspace with appropriate confidentiality protections under Article 84.

Coordinated On-Site Inspection (Month 2): Ireland's DSC, supported by technical experts from France and Germany, conducts an Article 51(1)(b) inspection at the platform's European headquarters in Dublin. The inspection team examines:

• Source code for recommender system algorithms
• A/B testing results showing how different algorithmic parameters affected misinformation amplification
• Internal metrics dashboards tracking engagement with health content
• Email communications among engineers, product managers, and executives about algorithmic design choices

During the inspection, technical experts from France and Germany provide specialized expertise on algorithmic systems, while Ireland's lawyers ensure procedural compliance with Irish administrative law requirements for inspections.

Joint Legal Analysis (Month 3): The participating DSCs analyze evidence jointly, conducting weekly video conferences to discuss findings and legal conclusions:

• Technical analysis reveals the recommender system prioritizes engagement metrics (likes, shares, comments) over information quality, causing sensational misinformation to receive preferential algorithmic amplification over authoritative health information
• Public health data demonstrates statistical correlation between viral misinformation periods and vaccination rate declines
• Platform's Article 34 risk assessment mentioned health misinformation but substantially underestimated its prevalence and impact
• Platform's Article 35 mitigation measures (fact-checking labels, authority source promotion) proved ineffective given algorithmic amplification continuing to prioritize engagement

Legal conclusion: The platform violated Article 35 by failing to implement adequate risk mitigation measures for the systemic risk of health misinformation amplification identified in its Article 34 assessment.

Preliminary Position and Enforcement Consensus (Month 4): Ireland's DSC drafts a preliminary position, circulates it to participating DSCs for comment, and after incorporating feedback, communicates the final preliminary position to all DSCs, the Commission, and the Board. The position concludes Article 35 violations occurred and proposes enforcement approach:

• Formal infringement decision by Ireland's DSC
• Cessation order requiring the platform to modify recommender system algorithms to reduce misinformation amplification
• Specific remedial measures: implement authority source boosting for health content, reduce engagement metric weighting for health topics, deploy enhanced fact-checking systems, and conduct quarterly audits of recommendation patterns
• Fine of 3.2% of global annual turnover (approximately €2.1 billion) reflecting violation gravity and cross-border impact
• Periodic penalty payments of €500,000 per day if remedial measures not implemented within 60 days

All participating DSCs support this enforcement approach, creating strong political consensus for strict enforcement.

Provider Response and Commitment Procedure: The platform, facing unanimous DSC support for strict enforcement, exercises its right to be heard and proposes binding commitments under Article 51(2)(a):

• Comprehensive recommender system redesign for health content reducing engagement-based amplification
• Partnership with World Health Organization and national health authorities to promote authoritative content
• Investment of €100 million in health misinformation detection and countermeasure systems
• Independent algorithmic audit every six months with results shared with all participating DSCs
• Commitment duration: three years with effectiveness review at 18 months

After negotiation, Ireland's DSC accepts modified commitments (including increased investment to €150 million and specific algorithmic change requirements) and makes them binding, avoiding formal infringement decision but achieving substantive compliance. All participating DSCs agree to the commitment resolution, concluding the joint investigation.

Lessons from Case Study 1:

• Joint investigations enable sophisticated technical analysis by pooling expertise from multiple DSCs
• Cross-border evidence gathering strengthens enforcement by demonstrating EU-wide impact
• Coordination among multiple DSCs creates political pressure for providers to implement meaningful compliance
• Even when joint investigations conclude with commitments rather than formal sanctions, they achieve significant enforcement through the credible threat of multi-national coordinated action
• Technical complexity requires extended timelines and specialized expertise beyond what individual DSCs typically possess

Case Study 2: Marketplace Joint Investigation - Systematic Trader Verification Failures

Scenario: An online marketplace established in Poland allegedly violates Article 22 (traceability of business users) by systematically failing to verify trader identities, enabling sellers of counterfeit goods, unsafe products, and illegal items to operate across its platform. The marketplace has significant operations in Poland, Czech Republic, Slovakia, Hungary, and Romania, with millions of consumers in these countries potentially exposed to illegal products.

Joint Investigation Launch (DSC Initiative): Poland's DSC, recognizing the cross-border dimensions, launches a joint investigation under Article 60(1)(a) at its own initiative. It invites DSCs from Czech Republic, Slovakia, Hungary, and Romania to participate. All accept, and Poland coordinates the investigation as DSC of establishment.

Coordinated Information Requests (Month 1): Poland issues comprehensive Article 51(1)(a) information requests to the marketplace requiring:

• Complete documentation of trader verification procedures
• Random sample of 1,000 trader accounts with verification documentation
• Statistics on verification failure rates, rejected applications, and suspended sellers
• Internal audits or assessments of trader verification system effectiveness
• Resources allocated to verification functions (personnel, budget, technology)

Simultaneously, each participating DSC issues information requests to national consumer protection authorities, police, and customs agencies in their territory for evidence of illegal products sold through the marketplace.

Parallel National Evidence Gathering (Months 1-2): Under Article 60(5), participating DSCs exercise investigative powers in their territories:

• Czech DSC conducts test purchases of age-restricted products, successfully purchasing without age verification multiple times
• Slovak DSC interviews consumers who received counterfeit electronics that caused fires due to safety defects
• Hungarian DSC obtains customs data showing high interception rates for parcels from marketplace sellers containing prohibited goods
• Romanian DSC gathers evidence from consumer complaints about sellers who disappeared after taking payments without delivering goods

All evidence is compiled in shared database with translations provided for key documents.

Joint Analysis Reveals Systematic Failures (Month 2-3): The participating DSCs analyze evidence jointly:

• Trader verification documentation shows automated processes with minimal human review, resulting in fake identity documents routinely being accepted
• Random sample of 1,000 traders reveals approximately 30% provided obviously fraudulent information (fake business registrations, non-existent addresses, stock photos as business documentation)
• Internal marketplace audits (which the company had not acted upon) documented verification system weaknesses years before the investigation
• The marketplace allocated only 12 staff members to verification for a platform with 200,000+ sellers
• Test purchases, consumer interviews, and customs data demonstrate direct harm causation from verification failures

Legal conclusion: Systematic Article 22 violations stemming from inadequate resource allocation and deficient verification procedures.

Preliminary Position (Month 4): Poland communicates preliminary position to participating DSCs, Commission, and Board:

• Article 22 violation finding based on systematic failure to implement effective trader verification
• Proposed enforcement: formal cessation order with detailed remedial requirements
• Required remedies: hire sufficient verification personnel (minimum 100 staff), implement enhanced verification including business registration database checks and identity document authentication, conduct retroactive verification of all existing traders, establish ongoing monitoring system with monthly compliance reporting
• Fine proposal: 2.5% of global turnover (€35 million) given systematic nature and significant consumer harm
• All participating DSCs support the preliminary position

Enforcement Implementation: Poland's DSC provides the marketplace with right to be heard. The marketplace does not dispute the factual findings but argues the fine is disproportionate given its relatively modest profitability despite high revenue. After deliberation with participating DSCs, Poland issues final decision:

• Formal Article 22 infringement finding
• Cessation order with all proposed remedial measures required within 90 days
• Reduced fine of 1.8% of global turnover (€25 million) accounting for profit margins while maintaining deterrent effect
• Periodic penalty payments of €50,000 per day if remedial measures not implemented by deadline
• Quarterly compliance reports to all participating DSCs for two years

The marketplace implements required measures and pays the fine, achieving full compliance.

Lessons from Case Study 2:

• Joint investigations enable comprehensive evidence gathering across provider's operational footprint
• Coordinated test purchases and consumer evidence gathering demonstrate violations more convincingly than purely documentary evidence
• DSC of establishment can maintain investigation control while leveraging participating DSCs' territorial jurisdiction for evidence gathering
• Consensus among participating DSCs strengthens enforcement legitimacy and political viability
• Extended compliance monitoring across multiple DSCs ensures sustained compliance after formal investigation concludes

Practical Guidance for Implementing Joint Investigations

For DSCs Planning Joint Investigations:

• Assessment Before Launch: Evaluate whether cross-border coordination adds value beyond what could be achieved through Article 57 mutual assistance or Article 58 cross-border cooperation. Joint investigations require significant resources and should be reserved for cases where multi-national coordination is essential.
• Clear Scope Definition: Define investigation scope precisely from the outset - which DSA obligations are under investigation, what time period is covered, what provider activities are in scope. Scope creep can cause timelines to collapse and coordination to break down.
• Coordination Infrastructure: Establish secure information sharing systems, regular meeting schedules, clear decision-making processes, and documentation protocols before beginning substantive investigative work.
• Role Clarity: Clearly assign investigative responsibilities among participating DSCs based on expertise, resources, and territorial jurisdiction. Prevent duplication and gaps.
• Translation Planning: Budget time and resources for translation of key documents. Don't underestimate translation delays.
• Timeline Realism: The three-month statutory timeline is challenging for complex cases. Consider requesting participant agreement for extensions early if investigation complexity warrants.
• Consensus Building: Facilitate regular discussions among participants about legal analysis and enforcement approach to identify disagreements early and work toward consensus.

For Providers Subject to Joint Investigations:

• Coordinated Response: Designate single point of contact coordinating responses to all participating DSCs. Prevent inconsistent information provision.
• Compliance Demonstration: Proactively demonstrate compliance efforts and corrective measures taken. Joint investigations involving multiple DSCs create momentum toward enforcement - showing good faith compliance can influence enforcement severity.
• Legal Representation: Engage legal counsel with expertise across multiple Member States' administrative law to ensure procedural rights are protected in all participating jurisdictions.
• Commitment Proactivity: Consider proactively proposing commitments addressing concerns rather than waiting for enforcement decision. Consensus among multiple DSCs on adequate commitments can be easier to achieve than agreement on specific penalties.
• Transparency: Cooperate fully with information requests and inspections from all participating DSCs. Obstruction will be viewed extremely negatively when multiple authorities are coordinating.

Success Factors for Effective Joint Investigations:

• Strong coordination by DSC of establishment with clear leadership and decision-making authority
• Adequate resources from all participating DSCs enabling meaningful participation
• Technical expertise appropriate to investigation subject matter
• Regular communication and transparency among participants
• Consensus-building culture seeking agreement on legal analysis and enforcement approach
• Realistic timeline management with extensions when necessary
• Clear procedures for dispute resolution when participating DSCs disagree
• Comprehensive documentation enabling judicial review and public accountability