Initiation of proceedings by the Commission and cooperation in investigation
Chapter 4|Supervision, Investigation, Enforcement and Monitoring of VLOPs and VLOSEs|đ 10 min read
1. The Commission may initiate proceedings in view of the possible adoption of decisions pursuant to Articles 73 and 74 in respect of the relevant conduct by the provider of the very large online platform or of the very large online search engine that the Commission suspects of having infringed any of the provisions of this Regulation.
2. When initiating proceedings, the Commission shall communicate its decision to the Digital Services Coordinators and the Board through the information sharing system referred to in Article 85, as well as to the provider concerned. Digital Services Coordinators shall, without undue delay, transmit to the Commission any information they have at their disposal on the matter that is the subject matter of the proceedings. Where the Commission initiates proceedings pursuant to paragraph 1, no Digital Services Coordinator shall continue to exercise the supervisory and enforcement powers referred to in Article 56(4) in respect of the same conduct, without prejudice to Article 56(5).
3. During the investigation, the Commission may request the relevant Digital Services Coordinators, including the Digital Services Coordinator of establishment, to assist it, in particular by providing information or exercising their investigative powers pursuant to Article 51(1) in relation to any information, persons or premises situated in the territory of their Member State. The relevant Digital Services Coordinators shall, within the limits of what is necessary to enable the Commission to carry out its tasks under this Regulation, provide such assistance in a sincere and timely manner.
4. The Commission shall communicate all relevant information on the exercise of its powers pursuant to Articles 67 to 72 and on its preliminary findings to the Digital Services Coordinator of establishment and to the Board. The Board may provide views within the timeframe referred to in Article 79(2). The Commission shall give utmost account to the views of the Board when deciding.
Understanding This Article
Article 66 establishes the procedural framework for formal Commission enforcement proceedings against VLOPs/VLOSEs, transforming Article 65's investigatory gateway into structured legal process potentially culminating in Article 73 non-compliance decisions and Article 74 fines. Critical procedural provisions address coordination challenges inherent in DSA's multi-level enforcement architecture: Commission exercises exclusive/concurrent jurisdiction over VLOPs/VLOSEs (Article 56(2)) while DSCs retain general enforcement authority (Article 56(1)), creating risk of parallel proceedings, conflicting decisions, duplicative investigations, and legal uncertainty for providers. Article 66 solves this through clear procedural rules: Commission must notify all stakeholders when opening proceedings, DSCs must cease enforcement on same conduct avoiding double jeopardy, DSCs must cooperate providing information and assistance, Board must be consulted on preliminary findings ensuring collective expertise informs Commission decisions. Procedural clarity protects provider rights (single proceeding, coordinated investigation, predictable process) while enabling effective enforcement through structured Commission-DSC cooperation.
Proceedings Initiation - Paragraph 1: Commission may initiate formal proceedings when suspecting VLOP/VLOSE violations of any DSA provision, not limited to Section 5 Chapter III VLOP-specific obligationsâcan address Article 14-17 due diligence violations, Article 24 dark patterns, Article 42 record-keeping failures, any systemic or serious infringement. Proceedings are in view of 'possible adoption' of Article 73 (non-compliance decision) and Article 74 (fines) but don't predetermine outcomeâCommission may conclude investigation without finding violations (Article 73(5) closing decision), accept Article 71 commitments, or determine preliminary concerns were unsubstantiated. Initiation threshold lower than decision threshold: proceedings require Commission suspicion based on Article 65 pre-proceedings investigation, DSC requests, media reporting, stakeholder complaints; final decisions require definitive finding supported by substantial evidence meeting legal standards. Initiation is Commission discretionâno mandatory proceedings even when violations suspected, enabling Commission to prioritize enforcement resources strategically.
Notification and Information Sharing - Paragraph 2: Commission must communicate proceedings initiation to: (a) all Digital Services Coordinators via Article 85 information sharing system ensuring EU-wide transparency, (b) the Board enabling collective oversight and expertise provision, (c) the provider concerned ensuring procedural rights and defense opportunity. DSCs must transmit 'any information they have at their disposal' on proceedings subject matter 'without undue delay'âcomprehensive information sharing obligation requiring DSCs to provide: enforcement files from national investigations, user complaints and reports, technical analyses and expert assessments, market intelligence and observation data, any relevant documentation even if not formally requested. 'Without undue delay' means immediately or within days, not weeksâurgency reflects Commission's need for rapid evidence gathering in time-sensitive investigations. Critical provision: 'no Digital Services Coordinator shall continue to exercise supervisory and enforcement powers referred to in Article 56(4) in respect of the same conduct' once Commission opens proceedingsâprevents parallel enforcement where Commission and DSC simultaneously investigate/penalize same VLOP behavior. Exclusive Commission jurisdiction during proceedings protects provider from double jeopardy (multiple penalties for same conduct), ensures consistent decision-making (no conflicting Commission/DSC conclusions), concentrates enforcement resources (Commission leads, DSCs support rather than duplicate). Exception: 'without prejudice to Article 56(5)' preserves DSC emergency interim measures authority even during Commission proceedings when urgent action needed pending Commission decision.
DSC Assistance Obligation - Paragraph 3: Commission can request DSCs, including establishment DSC, to assist investigation by: (a) providing informationâDSCs possess local market intelligence, national enforcement experience, stakeholder relationships, language/cultural expertise Commission lacks; (b) exercising Article 51(1) investigative powersâDSCs can conduct on-site inspections in their territory, interview persons in their jurisdiction, access national databases, compel information from entities under national law. Assistance particularly valuable when VLOP operations, personnel, or evidence located in Member StateâIrish DSC can inspect Meta's Dublin headquarters more efficiently than Commission traveling from Brussels, French DSC can interview TikTok France employees, German DSC can access local server data. DSCs must provide assistance 'in a sincere and timely manner'âduty of sincere cooperation derived from Article 4(3) TEU loyalty principle requires genuine, constructive, proactive assistance not mere formal compliance. 'Within the limits of what is necessary to enable the Commission to carry out its tasks' respects proportionality and Member State autonomyâDSCs assist Commission investigation but aren't Commission subordinates, assistance limited to what Commission genuinely needs, DSCs retain discretion over resource allocation and investigative methods.
Board Consultation - Paragraph 4: Commission must communicate to establishment DSC and Board: (a) relevant information on exercise of Articles 67-72 powers (information requests, interviews, inspections, interim measures, monitoring actions), (b) preliminary findings before final decision. Board may provide views within Article 79(2) timeframeâtypically 30 days but can be extended for complex matters. Commission must give 'utmost account' to Board views when decidingâstrong consultation obligation requiring Commission to seriously consider and substantively engage with Board input, explaining in final decision how Board views were addressed. Not binding on Commission (Commission retains final decision authority as enforcement body) but creates procedural pressure for Commission to align with collective DSC expertise when Board consensus exists. Board input particularly valuable for: technical assessments of algorithmic compliance, proportionality of proposed remedies, cross-border impact evaluation, enforcement precedent consistency, practical implementation feasibility. Consultation ensures Commission decisions benefit from distributed national regulatory expertise and address collective DSC concerns.
Key Points
Commission may initiate proceedings toward Articles 73-74 decisions on suspected violations
Proceedings cover any DSA provision violations by VLOPs/VLOSEs
Commission must notify DSCs, Board, and provider when opening proceedings
Notifications transmitted through Article 85 information sharing system
DSCs must transmit all relevant information to Commission without undue delay
When Commission opens proceedings, DSCs cease Article 56(4) enforcement on same conduct
Prevents parallel proceedings and conflicting decisions (double jeopardy protection)
TikTok Investigation - Proceedings Initiation and Cooperation: Following Romanian DSC Article 65(2) request regarding election interference and Commission's own-initiative Article 65(1) preliminary investigation revealing potential Article 35 and Article 27 violations, Commission initiates Article 66 proceedings in December 2024. Commission decision transmitted via Article 85 system simultaneously to: all 27 DSCs (transparency), Board (collective oversight), TikTok (procedural rights notification). Irish DSC (establishment coordinator) immediately transmits comprehensive information package: TikTok's Irish corporate filings and operational structure, previous Irish DSC supervisory correspondence with TikTok, Irish enforcement intelligence on TikTok's content moderation practices, user complaints received by Irish DSC about recommendation algorithm behavior, technical documentation TikTok provided during Irish DSC Article 51 supervision. Romanian DSC transmits election-specific evidence: algorithmic amplification analysis, coordinated account network data, voter impact assessments, timeline of viral content propagation. Other DSCs provide comparative intelligence: French DSC data on TikTok algorithm behavior during French elections, German DSC analysis of TikTok's German-language content moderation, Spanish DSC observations on TikTok minor protection implementation. All DSCs cease any pending Article 56(4) enforcement actions against TikTok for same algorithmic conduct (though can continue enforcement on unrelated violations like Article 12 points of contact or Article 15 terms of service issues).
Commission-DSC Investigative Cooperation - Meta Inspection: Commission investigating Meta's Article 40 researcher data access compliance issues Article 67 information request to Meta seeking API documentation, researcher request handling procedures, approval/rejection decision criteria. Meta response raises questions requiring on-site verification. Commission requests Irish DSC assistance per paragraph 3 to conduct Article 51(1) inspection at Meta's Dublin offices. Irish DSC inspectors (assisted by Commission officials) examine: Meta's internal researcher request processing systems, email communications between Meta data access team and researchers, technical API infrastructure and logs, internal Meta documents on data access policy decisions. Irish DSC provides findings to Commission in detailed report. Irish DSC exercises its national investigative powers (building access, document examination, employee interviews) under Irish law implementing Article 51, while investigation serves Commission's Article 66 proceeding. Cooperation leverages Irish DSC's proximity to Meta (Dublin location, established relationships, knowledge of Meta's Irish operations) enhancing investigation effectiveness beyond Commission's Brussels-based capabilities.
Board Consultation on Preliminary Findings: Commission investigation of X's Article 14 content moderation, Article 16 notice-and-action mechanisms, Article 24 dark patterns, and Article 27 advertising transparency produces preliminary findings in July 2024 identifying potential violations. Commission transmits preliminary findings to Irish DSC (X's establishment coordinator) and Board per paragraph 4. Board discusses findings in extraordinary meeting: technical experts from Italian, German, French, and Dutch DSCs review Commission's algorithmic analysis, Polish DSC raises concerns about proposed remedy proportionality, Swedish DSC suggests alternative compliance timeline. Board adopts opinion supporting Commission's violation findings but recommending: (1) enhanced technical specifications for remedial measures ensuring effective implementation, (2) shorter compliance deadlines for advertising transparency (3 months vs. Commission's proposed 6 months), (3) mandatory quarterly compliance reporting during implementation. Commission receives Board opinion, assesses recommendations, incorporates most into final decision: adopts enhanced technical specifications and quarterly reporting, maintains 6-month timeline but adds interim 3-month progress review requirement. Commission's final Article 73 decision explains how Board views influenced remedies demonstrating 'utmost account' obligation while retaining Commission's ultimate decision authority.
Emergency Measures During Proceedings - Article 56(5) Exception: Commission initiates Article 66 proceedings against YouTube investigating Article 35 systemic risk mitigation adequacy. During investigation (taking 6-12 months), new acute crisis emerges: terrorist attack in Madrid with violent extremist content rapidly spreading on YouTube algorithm amplification. Spanish DSC determines urgent action needed beyond Commission's ongoing investigation. Despite Commission proceedings barring Spanish DSC from Article 56(4) enforcement on algorithmic issues under paragraph 2, Spanish DSC invokes Article 56(5) emergency interim measures: orders YouTube to immediately deploy enhanced content detection for Spanish violent extremism, increase manual review of flagged content in Spanish language, implement temporary algorithmic adjustments reducing viral spread of violent material, daily reporting to Spanish DSC on removal volumes and detection effectiveness. Article 56(5) exception permits Spanish DSC emergency action despite Commission proceedings because crisis requires immediate national response that Commission's EU-level investigation timeframe cannot address. Spanish DSC notifies Commission and Board of Article 56(5) measures per procedural requirements. Commission continues broader Article 35 investigation while Spanish DSC addresses acute crisis.
For Commission - Managing Article 66 Proceedings: Provide clear proceedings notifications enabling stakeholders to understand scope and timeline. Proactively request DSC assistance strategically leveraging national authorities' territorial proximity and investigative capabilities. Maintain transparent communication with DSCs throughout investigation sharing findings and developments. Engage Board substantively on preliminary findings genuinely considering collective expertise. Manage proceedings efficiently respecting provider procedural rights while ensuring thorough investigation. Coordinate with establishment DSC given its Article 56(1) residual enforcement authority.
For DSCs - Cooperation Obligations: Respond promptly and comprehensively to Commission information requests transmitting all relevant materials. Offer proactive assistance when DSC possesses unique intelligence or territorial advantage. Execute Commission assistance requests sincerely allocating adequate resources and expertise. Cease parallel Article 56(4) enforcement on same conduct respecting Commission's exclusive proceedings jurisdiction. Contribute actively to Board consultations on preliminary findings providing technical expertise and enforcement perspectives. Maintain emergency Article 56(5) readiness for urgent situations requiring immediate national action despite Commission proceedings.
For VLOPs/VLOSEs - Navigating Proceedings: Respond comprehensively to Commission proceedings notification understanding formal investigation has commenced. Engage constructively with Commission and any assisting DSCs providing requested information and cooperation. Monitor Board consultation process as Board views influence Commission decisions. Consider Article 71 commitments if preliminary findings indicate violations offering proactive remedies avoiding Article 73 formal non-compliance and Article 74 fines. Maintain consistent compliance approach across all Member States as DSC intelligence sharing reveals disparities between national markets.