Enforcement of obligations of providers of very large online platforms and of very large online search engines
Chapter 4|Supervision, Investigation, Enforcement and Monitoring of VLOPs and VLOSEs|đ 8 min read
1. For the purposes of investigating compliance of providers of very large online platforms and of very large online search engines with the obligations laid down in this Regulation, the Commission may exercise the investigatory powers laid down in this Section even before initiating proceedings pursuant to Article 66(2). It may exercise those powers on its own initiative or following a request pursuant to paragraph 2 of this Article.
2. Where a Digital Services Coordinator has reason to suspect that a provider of a very large online platform or of a very large online search engine has infringed the provisions of Section 5 of Chapter III or has systemically infringed any of the provisions of this Regulation in a manner that seriously affects recipients of the service in its Member State, it may send, through the information sharing system referred to in Article 85, a request to the Commission to assess the matter.
3. A request pursuant to paragraph 2 shall be duly reasoned and at least indicate:
(a) the point of contact of the provider of the very large online platform or of the very large online search engine concerned as provided for in Article 11;
(b) a description of the relevant facts, the provisions of this Regulation concerned and the reasons why the Digital Services Coordinator that sent the request suspects that the provider of the very large online platforms or of the very large online search engine concerned infringed this Regulation, including a description of the facts that show that the suspected infringement is of a systemic nature;
(c) any other information that the Digital Services Coordinator that sent the request considers relevant, including, where appropriate, information gathered on its own initiative.
Understanding This Article
Article 65 establishes the foundational gateway for European Commission enforcement against very large online platforms (VLOPs) and very large online search engines (VLOSEs), addressing the structural challenge of supranational supervision: while Article 56(2) grants Commission exclusive jurisdiction over VLOP/VLOSE Section 5 Chapter III obligations and concurrent jurisdiction for systemic violations, effective enforcement requires mechanisms enabling Commission to identify, investigate, and act upon violations that may not be immediately visible from Brussels. Article 65 creates dual-track investigation initiation: Commission own-initiative investigations leveraging Commission's market intelligence, media reporting, stakeholder complaints, Board consultations, and systemic monitoring; and DSC-triggered requests channeling distributed national regulatory intelligence from 27 Member State authorities observing platform behaviors in their jurisdictions, receiving user complaints, monitoring local impacts, and conducting national-level investigations. This distributed intelligence model is critical because VLOPs/VLOSEs operate globally but violations often manifest locallyâIrish users experiencing algorithmic discrimination, German misinformation campaigns during elections, French minor safety incidents, Spanish advertising transparency failuresârequiring national DSC proximity to detect patterns Commission might miss.
Pre-Proceedings Investigatory Authority - Paragraph 1: Commission may exercise Articles 66-72 investigatory powers (information requests, interviews, inspections, interim measures, monitoring actions) even before formally initiating Article 66(2) proceedings. Critical because investigation needed to determine whether formal proceedings warrantedâCommission must gather preliminary evidence assessing whether suspected violations are substantiated, systemic, and serious enough to justify full enforcement action. Pre-proceedings powers include: Article 67 information requests (simple or binding) compelling VLOPs to provide documents, data, explanations; Article 68 interviews with VLOP employees, contractors, users, researchers, competitors; Article 69 on-site inspections of VLOP premises examining algorithms, databases, content moderation systems; Article 72 monitoring actions requiring algorithm access and document retention. Enables Commission to investigate suspicions without committing to full proceedings, conducting preliminary fact-finding, assessing violation severity, determining appropriate enforcement response (informal resolution, commitments, formal proceedings, closing investigation). Prevents premature proceedings when allegations unsubstantiated while ensuring Commission can investigate credible concerns thoroughly.
DSC Request Mechanism - Paragraphs 2-3: Digital Services Coordinators can submit reasoned requests to Commission through Article 85 information sharing system when suspecting: (a) Section 5 Chapter III violations (Articles 33-43: VLOP-specific obligations including systemic risk assessment, independent audits, crisis protocols, recommender system transparency, advertising transparency, data access for researchers, compliance function, public accountability), or (b) systemic infringements of any DSA provision seriously affecting recipients in DSC's Member State. 'Systemic infringement' means widespread, structural, recurring violations embedded in platform's business model, algorithmic systems, organizational processes, or policy implementationânot isolated incidents but patterns indicating compliance failures. 'Seriously affects recipients' requires demonstrating significant harm to users in Member State: fundamental rights violations, consumer protection harm, competition distortion, public discourse manipulation, minor safety risks. DSC requests must meet formal requirements: identify provider's Article 11 point of contact, describe relevant facts with specificity, cite applicable DSA provisions, explain infringement suspicion including systemic nature demonstration, provide supporting evidence and information gathered by DSC. Reasoned request standard prevents frivolous or politically motivated requests while enabling substantiated concerns to trigger Commission assessment.
Commission Discretion: Article 65 does not compel Commission to investigate every DSC requestâCommission retains discretion assessing whether request warrants investigation based on: evidence strength and credibility, violation severity and systemic nature, EU interest in enforcement, available Commission resources, strategic enforcement priorities, pending investigations or proceedings. However, Commission must give DSC requests serious consideration given DSCs' regulatory expertise and proximity to national markets. Repeated requests from multiple DSCs about same VLOP behavior create strong pressure for Commission action demonstrating cross-border impact requiring supranational intervention. DSC requests serve dual function: triggering Commission investigations and providing Commission with distributed intelligence enhancing enforcement effectiveness.
Key Points
Commission may investigate VLOP/VLOSE compliance before initiating formal proceedings
Commission can exercise investigatory powers on own initiative or following DSC request
DSCs can request Commission assessment through information sharing system (Article 85)
DSC requests allowed when suspecting Section 5 Chapter III violations or systemic infringements
Violations must seriously affect service recipients in requesting Member State
Requests must be duly reasoned with specific factual and legal basis
Must include provider's Article 11 point of contact
Must describe relevant facts and applicable DSA provisions
Must explain reasons for suspected infringement including systemic nature
May include any other relevant information gathered by DSC
Establishes gateway for Commission enforcement against VLOPs/VLOSEs
Creates dual-track system: Commission own-initiative plus DSC-triggered actions
Enables coordination between national DSCs and Commission
Facilitates cross-border enforcement for platform violations
Provides mechanism for Member States to escalate serious VLOP concerns
Commission exercises Articles 66-72 investigatory powers even pre-proceedings
Practical Application
DSC Request Example - TikTok Election Interference: Romanian Digital Services Coordinator observes during 2024 presidential election that TikTok's recommendation algorithms disproportionately amplify pro-candidate content through coordinated inauthentic accounts, potentially violating Article 35 (systemic risk mitigation) and Article 27 (recommender transparency). DSC conducts preliminary investigation: analyzes viral content patterns, interviews researchers documenting algorithmic amplification, gathers user complaints, reviews TikTok's public risk assessments. DSC determines violations appear systemic (algorithmic design systematically favors certain content types regardless of authenticity) and seriously affect Romanian users (electoral integrity impact, voter manipulation, democratic process harm). DSC submits Article 65(2) request via Article 85 system including: TikTok's Article 11 point of contact, detailed description of observed amplification patterns with data and examples, citation of Articles 35 and 27 with explanation of suspected violations, analysis showing systemic nature (algorithmic design not isolated moderation failures), supporting evidence (researcher reports, algorithmic analysis, user testimonies). Commission assesses request, determines sufficient basis, initiates Article 66 proceedings investigating TikTok's Article 35 risk mitigation and Article 27 transparency compliance.
Commission Own-Initiative Investigation - X Content Moderation: Commission monitors media reporting, stakeholder complaints, Board discussions regarding X (Twitter) following ownership change and policy modifications. Concerns emerge about: Article 14 content moderation adequacy (reduced moderation staff, policy changes), Article 16 notice-and-action mechanism effectiveness, Article 24 dark patterns in subscription options. Commission exercises Article 65(1) pre-proceedings powers without DSC request: issues Article 67 information requests to X seeking internal content moderation policies, staffing data, notice-and-action statistics, dark pattern justifications; conducts Article 68 interviews with former content moderators and researchers documenting policy impacts; orders Article 72 retention of all documents related to content moderation changes. Based on preliminary evidence, Commission initiates formal Article 66 proceedings in December 2023 investigating X's compliance with Articles 14, 16, and 24, ultimately issuing Article 73 preliminary findings in July 2024.
Cross-Border Coordination - Meta Data Access: Multiple DSCs (Irish, Dutch, French, German) independently receive researcher complaints about Meta's Article 40 data access provision inadequacy: delayed API approvals, functionality limitations, insufficient data granularity, opaque rejection criteria. Each DSC considers Article 51 national enforcement but recognizes: (1) Meta established in Ireland (Irish DSC has establishment jurisdiction under Article 56(1)), (2) violations appear systemic across all Member States (not country-specific), (3) Commission exclusive Article 56(2) jurisdiction over VLOP Section 5 Chapter III obligations (including Article 40). Irish DSC, as establishment coordinator, submits Article 65(2) request documenting systematic Article 40 violations based on Irish researcher experiences plus intelligence from other DSCs. Commission investigates, issues Article 67 information requests to Meta and complaining researchers, conducts Article 68 interviews, issues preliminary findings in October 2024 that Meta violated Article 40. Commission's supranational investigation addresses cross-border violations more effectively than fragmented national enforcement.
Systemic vs. Isolated Violations - Minor Protection: Spanish DSC receives complaint that Instagram showed age-inappropriate advertising to Spanish minor. Single incident doesn't warrant Article 65 request (isolated violation not systemic, Spanish DSC can address nationally under Article 51). However, if Spanish DSC investigation reveals: Instagram's algorithmic advertising targeting systematically fails to respect Article 28(2) minor protection across thousands of Spanish users, targeting parameters inappropriately profile minors, age verification mechanisms inadequate, risk assessment under Article 35 failed to identify/mitigate minor harmâthen systemic nature demonstrated justifying Article 65 request. Commission investigation would examine whether Article 28(2)/35 violations are EU-wide or Spain-specific, potentially addressing fundamental design/policy failures rather than isolated incidents.
For DSCs - Using Article 65: Monitor VLOP/VLOSE behaviors in your jurisdiction identifying potential systemic violations. Conduct preliminary national investigation gathering evidence before submitting Article 65 request. Coordinate with other DSCs through Board and bilateral channels identifying cross-border patterns. Submit well-reasoned requests meeting paragraph 3 requirements with strong factual basis. Use Article 65 strategically for violations exceeding national enforcement capacity or requiring supranational intervention. Follow up with Commission providing additional information as investigation proceeds.
For Commission - Processing Article 65 Requests: Establish clear procedures for receiving, assessing, and responding to DSC requests. Provide feedback to requesting DSCs on assessment decisions and investigation status. Coordinate with DSC of establishment when investigating DSC-requested matters. Leverage Article 65 requests as distributed intelligence improving enforcement targeting. Balance DSC-triggered investigations with own-initiative priorities ensuring strategic resource allocation. Communicate enforcement priorities helping DSCs understand what types of violations warrant Article 65 requests.
For VLOPs/VLOSEs - Managing Article 65 Risk: Recognize Commission can investigate based on DSC requests or own initiative requiring comprehensive DSA compliance across all Member States. Monitor DSC enforcement trends and stakeholder complaints identifying potential Article 65 triggers. Engage proactively with DSCs addressing concerns before escalation to Commission. Maintain robust compliance documentation enabling quick responses to Commission pre-proceedings information requests. Implement systemic compliance improvements rather than country-specific fixes avoiding patterns triggering Article 65 requests from multiple DSCs.