Chapter 4|European Board for Digital Services|đ 6 min read
1. At the request of the Commission or on its own initiative, the Board may issue opinions, recommendations or advice to one or more Digital Services Coordinators or to the Commission on matters falling within this Regulation, including at least in relation to:
(a) the taking up and the exercise of the activities of Digital Services Coordinators;
(b) the application of Article 50;
(c) the application of Articles 57 and 58 in relation to cross-border matters;
(d) the application of Articles 40 and 41 in relation to the audits and auditors;
(e) the preparation of the delegated and implementing acts provided for in this Regulation;
(f) the templates referred to in Article 85;
(g) the identification and assessment of emerging issues and emerging technologies in relation to this Regulation.
2. At the request of the Commission, the Board shall support the Commission in the supervision of very large online platforms and very large online search engines, in particular by:
(a) supporting the coordination of joint investigations pursuant to Article 60 concerning alleged infringements by providers of very large online platforms and very large online search engines;
(b) supporting the competent authorities in the analysis of reports and results of audits referred to in Article 37, Article 40(3), and Article 42(4);
(c) assisting the Commission in the identification and assessment of systemic issues and emerging issues concerning the supervision and enforcement of this Regulation;
(d) issuing opinions or recommendations to the Commission, including on the enforcement measures referred to in Articles 66, 67 and 68.
3. The Board shall support the cooperation and coordination among Digital Services Coordinators by:
(a) supporting the Commission and the Digital Services Coordinators in the development and implementation of European standards, guidelines, reports, templates and codes of conduct in cooperation with relevant stakeholders, in relation to matters covered by this Regulation;
(b) issuing recommendations and opinions on any issue referred to it in accordance with this Regulation;
(c) carrying out analysis and contributing to the formulation of guidance and opinions by the Commission and the Digital Services Coordinators on emerging issues across the internal market with respect to matters covered by this Regulation, in particular with a view to promoting consistent administrative practice in relation to this Regulation.
4. Where the Digital Services Coordinators or the Commission do not comply with an opinion, a recommendation or advice issued by the Board, they shall provide the Board with an explanation of the reasons for not complying. They shall also make public that explanation and send it to the Board.
Understanding This Article
Article 63 operationalizes Board's Article 61 objectives through concrete tasks spanning advisory functions (issuing opinions, recommendations, advice), VLOP supervision support (coordinating investigations, analyzing audits, identifying systemic issues), and coordination facilitation (developing standards, promoting consistent practices, addressing emerging challenges). Board outputs shape DSA implementation landscape: opinions provide authoritative interpretations of ambiguous provisions guiding DSC enforcement, recommendations suggest best practices improving regulatory effectiveness, standards and guidelines harmonize implementation reducing forum shopping and compliance uncertainty. "Comply or explain" mechanism (paragraph 4) creates soft enforcementâDSCs and Commission not legally bound to follow Board positions but must publicly justify departures, generating reputational pressure toward compliance and transparency about divergences.
Advisory Functions - Paragraph 1: Board issues opinions, recommendations, advice on Commission request or own initiative covering: (a) DSC activities and Article 50 complianceâassessing whether DSCs meet independence, resource, expertise requirements; (b-c) cross-border cooperation effectivenessâevaluating Articles 57-58 mutual assistance and coordination functioning; (d) audit frameworksâanalyzing auditor quality and audit report adequacy; (e) delegated/implementing actsâadvising Commission on technical standards; (f) templatesâreviewing Article 85 standardized forms; (g) emerging issuesâidentifying new technologies and business models requiring regulatory attention (AI, decentralized platforms, blockchain services).
Coordination Facilitation - Paragraph 3: Board develops European standards, guidelines, codes of conduct promoting harmonized DSA implementation. Works with stakeholders (industry, civil society, academia) ensuring standards technically feasible and rights-protective. Issues recommendations and opinions on DSC-referred questions providing collective expertise. Formulates guidance addressing emerging regulatory challenges enabling coordinated Member State responses.
Comply or Explain - Paragraph 4: DSCs/Commission not following Board positions must provide public explanation and reasons. Creates accountability through transparencyâstakeholders scrutinize departures assessing legitimacy, persistent non-compliance signals potential enforcement inadequacy or political interference, explanations enable learning if justified departures reveal Board position flaws requiring refinement.
Key Points
Board issues opinions, recommendations, and advice to DSCs and Commission
Board may act on Commission request or own initiative
Addresses DSC activities and Article 50 compliance
Covers cross-border cooperation under Articles 57-58
Addresses audit and auditor issues under Articles 40-41
Contributes to delegated and implementing acts
Reviews templates for DSA implementation
Identifies and assesses emerging issues and technologies
Supports Commission's VLOP/VLOSE supervision
Coordinates joint investigations under Article 60
Analyzes VLOP audit reports and results
Assists in identifying systemic and emerging issues
Issues opinions on Commission enforcement measures
Develops European standards, guidelines, and codes of conduct
Promotes consistent administrative practice across Member States
Non-compliance with Board positions requires public explanation
Practical Application
Board Opinion on Dark Patterns: Multiple DSCs struggle interpreting Article 24 "dark patterns" prohibitionâunclear which interface designs constitute manipulation. Board issues opinion defining dark patterns categories: misleading design (fake countdown timers creating urgency), obstruction (hiding cancellation options), nagging (repeated interruptions pressuring consent), forced action (bundling unrelated acceptances). Opinion provides enforcement frameworkâDSCs apply Board categorization in Article 24 investigations, platforms use Board guidance for compliance, consistent interpretation emerges across EU. French DSC initially disagrees with specific Board example classification, publicly explains reasoning per paragraph 4, dialogue leads to Board opinion refinement in next version.
For DSCs: Engage Board requesting opinions on difficult interpretation questions. Contribute expertise to Board guideline development. Implement Board recommendations unless compelling reasons counsel otherwiseâdepartures requiring paragraph 4 public explanation. Provide feedback if Board positions prove impractical informing refinement. Use Board standards in enforcement promoting EU-wide consistency.
For Commission: Request Board support for VLOP investigations leveraging national DSC expertise. Consult Board when developing delegated acts and guidance. Consider Board recommendations seriously in policy development. Explain publicly if diverging from Board positions maintaining transparency and accountability.