Chapter 4|Supervision, Investigation, Enforcement and Monitoring of VLOPs and VLOSEs|đ 8 min read
1. In the context of proceedings which may lead to the adoption of a decision of non-compliance pursuant to Article 73(1), where there is an urgency due to the risk of serious damage for the recipients of the service, the Commission may, by decision, order interim measures against the provider of the very large online platform or of the very large online search engine concerned on the basis of a prima facie finding of an infringement.
2. A decision under paragraph 1 shall apply for a specified period of time and may be renewed in so far this is necessary and appropriate.
Understanding This Article
Article 70 empowers Commission to impose temporary corrective measures during ongoing Article 66 proceedings when urgent action necessary to prevent serious harm before full investigation concludes and final Article 73 non-compliance decision issues. Addresses temporal enforcement challenge: comprehensive VLOP investigations typically span 6-18 months involving Article 67 information requests, Article 68 interviews, Article 69 inspections, technical analyses, legal assessments, Board consultationsâmeanwhile suspected violations continue causing ongoing harm to millions of users. Waiting for investigation completion may result in: electoral interference affecting democratic processes (election occurring before investigation finishes), systemic risks materializing into actual harms (viral misinformation spread, coordinated attacks, child safety incidents), irreversible damage to fundamental rights (mass surveillance, discrimination, expression suppression). Interim measures enable Commission to order immediate protective action based on preliminary evidence while maintaining full investigation rigor for final decisions. Two cumulative requirements: (1) urgency due to serious damage risk to service recipients, (2) prima facie infringement finding. Modeled on competition law interim measures (rarely used but powerful when invoked), balances enforcement responsiveness with provider procedural rightsâprovisional remedies based on preliminary assessment subject to modification if subsequent investigation reveals different facts, time-limited application preventing indefinite provisional restrictions, renewal option if ongoing necessity demonstrated.
Interim Measures Requirements - Paragraph 1: Available 'in context of proceedings which may lead to Article 73(1) non-compliance decision'âCommission must have initiated Article 66(1) formal proceedings, interim measures cannot precede proceedings (though Article 65 pre-proceedings investigation can occur). Urgency requirement: 'urgency due to risk of serious damage for recipients of service'âtwo elements: (a) Urgencyâtime-sensitive situation where delay would undermine protective purpose, typically involves: imminent elections/referendums (electoral integrity at stake), ongoing crisis (public health emergency, natural disaster, security threat, violent unrest), systematic harm accumulation (daily exposure of minors to inappropriate content, continuous discriminatory algorithmic treatment, ongoing fundamental rights violations), seasonal/temporal factors (holiday shopping misinformation, tax season fraud); (b) Serious damage risk to recipientsâsubstantial harm threatened not mere inconvenience or commercial impact, includes: fundamental rights violations (privacy, expression, non-discrimination), physical safety threats (violence incitement, dangerous product promotion, self-harm content to vulnerable users), democratic process integrity (electoral manipulation, voter suppression, candidate defamation), consumer protection harms (systematic fraud, scam proliferation), minor welfare (inappropriate content exposure, predatory behavior, mental health risks). Serious damage assessed from recipient perspective not provider business impactâCommission considers affected user numbers, harm severity, irreversibility. Prima facie finding: 'preliminary evidence showing infringement likely'âlower threshold than Article 73 final decision's definitive finding based on complete investigation, similar to 'balance of probabilities' or 'reasonable suspicion' standard. Commission assesses available evidence (Article 67 responses, Article 68 interviews, Article 69 inspection findings, media documentation, stakeholder reports, DSC intelligence) determining whether infringement appears sufficiently likely to justify provisional intervention. Prima facie standard protects provider rightsâprevents interim measures on speculative allegations, requires substantial preliminary evidence, allows subsequent investigation to rebut preliminary assessment if full evidence shows no violation. Decision format: interim measures imposed 'by decision'âformal Commission act specifying required provider actions, legal basis, justification, duration, penalties for non-compliance, judicial review rights.
Duration and Renewal - Paragraph 2: Interim measures 'apply for specified period of time'âCommission determines appropriate duration based on: investigation timeline (how long until final Article 73 decision expected), urgency nature (electoral period ending on specific date, crisis duration), measure implementation timeframe (algorithmic changes requiring testing, organizational adjustments needing planning). Typical duration: few months pending investigation conclusion, though can be shorter (weeks for acute crisis) or longer (year+ for complex investigations). Renewal provision: measures 'may be renewed in so far necessary and appropriate'âif investigation extends beyond initial period, harm risk continues, measures proven effective, proportionality maintained, Commission can renew extending interim protections. Renewal requires reassessment: Commission evaluates whether conditions still met (ongoing urgency, continued serious damage risk, prima facie finding still supported by evidence), considers provider compliance and impacts, adjusts measures if circumstances changed. Renewal not automaticâmust be affirmatively justified, prevents indefinite provisional restrictions, ensures measures remain temporary pending final decision.
Enforcement and Penalties: Non-compliance with interim measures triggers Article 74(1)(b) fines up to 6% global turnoverâsame maximum as substantive violations given serious damage prevention urgency. Article 76 periodic penalty payments also available compelling daily compliance. Interim measure violations may aggravate final enforcement: provider ignoring interim measures demonstrates unwillingness to remedy harms increasing culpability for ultimate Article 73/74 decisions.
Key Points
Commission can order interim measures during Article 73 non-compliance proceedings
Available when urgency exists due to risk of serious damage to service recipients
Requires prima facie finding of infringement (preliminary evidence, not definitive proof)
Lower evidentiary threshold than final Article 73 non-compliance decision
Measures ordered by Commission decision with immediate binding effect
Apply for specified time period determined by Commission
Can be renewed as necessary and appropriate for continued protection
Designed to prevent irreparable harm pending full investigation completion
Modeled on competition law interim measures framework
Particularly relevant for time-sensitive systemic risks under Article 35
Addresses situations where waiting for final decision would cause substantial harm
Enables responsive action during electoral periods, crises, or acute safety threats
Balances enforcement urgency with provider rights through prima facie standard
Provisional nature allows adjustment if full investigation reveals different facts
Non-compliance with interim measures triggers Article 74 fines up to 6% turnover
Critical tool for preventing ongoing harm while investigation proceeds
Practical Application
Electoral Interference - TikTok Romanian Election: November 2024, Commission investigating TikTok Article 35 systemic risk mitigation and Article 27 recommender transparency regarding Romanian presidential election. First round December 1, runoff December 15. Evidence shows TikTok algorithm amplifying pro-candidate coordinated inauthentic accounts. Commission faces timing problem: full investigation requiring comprehensive Article 67 information requests, Article 69 algorithm inspection, technical analysis will take 6+ monthsâelection occurs during investigation making final decision too late preventing electoral manipulation. Commission orders Article 70 interim measures based on prima facie finding (Romanian DSC evidence, media documentation, researcher analyses demonstrating algorithmic amplification). Interim decision orders TikTok to: (1) immediately enhance coordinated inauthentic behavior detection for Romanian election content, (2) modify recommendation algorithm reducing viral spread of election-related content from accounts exhibiting coordinated behavior patterns, (3) prominently label election content from unverified sources, (4) implement daily reporting to Commission on detection actions and algorithm adjustments, (5) measures apply through December 20 (covering both election rounds plus post-election period). TikTok must comply within 48 hours. Prima facie evidence sufficient for interim order though full investigation continues determining definitive Article 35/27 compliance. If subsequent investigation shows TikTok actually compliant, interim measures can be lifted; if investigation confirms violations, interim measures transition into Article 73 final decision requirements potentially with Article 74 fines.
Child Safety Crisis - Instagram Minor Protection: Commission investigating Instagram Article 28(2) minor protection and Article 35 systemic risk mitigation following media reports of algorithm promoting self-harm content to teenage users. Investigation includes Article 67 requests for algorithm documentation, Article 68 interviews with minor safety experts and affected families, Article 69 inspection of recommendation systems. Evidence emerging during investigation shows Instagram's algorithm continues recommending eating disorder, self-harm, and suicide content to users identified as minors despite Article 28(2) obligations. Commission determines urgent action necessary: ongoing minor exposure to harmful content causing serious damage (mental health crises, self-harm incidents), waiting 9-12 months for investigation completion unacceptable given vulnerable population. Commission orders interim measures: (1) immediately adjust recommendation algorithm eliminating self-harm/eating disorder/suicide content promotion to users under 18, (2) implement enhanced content detection for minor-targeted harmful material, (3) remove existing algorithmic recommendations of such content to minor users, (4) weekly reporting to Commission on implementation and effectiveness. Prima facie finding based on researcher documentation, media investigation evidence, preliminary Article 67 responses showing algorithm design prioritizing engagement over minor safety. Interim measures apply for 6 months renewable pending investigation completion. Instagram implements measures within 72 hours. Commission monitors compliance through Article 72 ongoing monitoring and weekly reports. Full investigation continues determining whether permanent Article 73 remedies and Article 74 fines warranted.
Crisis Response Failure - X Emergency Protocol: Major terrorist attack in Paris. Commission investigating X's Article 36 crisis response protocol adequacy and Article 14/35 content moderation. During investigation, X's crisis protocols fail: violent extremist content spreads virally, verified accounts suspended incorrectly, misinformation about attack amplified by recommendation algorithm, emergency authorities cannot reach X for coordination. Commission determines urgent interim measures necessary: crisis ongoing (multi-day investigation and response), serious damage to recipients (panic from misinformation, exposure to violent content, obstruction of emergency response). Prima facie evidence: Commission's real-time monitoring during crisis, French DSC observations, emergency authority complaints, X's own response failures documenting Article 36 inadequacy. Interim decision orders X to: (1) immediately activate enhanced crisis protocols, (2) deploy maximum content moderation resources, (3) algorithmically de-amplify unverified crisis-related content, (4) establish direct Commission and French DSC communication channel, (5) hourly status reporting. Measures apply for crisis duration plus 48-hour stabilization period (approximately 5 days total). X complies avoiding Article 74 fine risk. Interim measures prevent ongoing harm while broader Article 36 investigation assesses systematic crisis protocol deficiencies requiring permanent remedies.
Renewal Example - YouTube Misinformation Campaign: Commission investigating YouTube Article 35 systemic risk mitigation regarding health misinformation. Orders 3-month interim measures requiring algorithm modifications reducing misinformation amplification. Investigation extends beyond 3 months due to complexity. Commission evaluates renewal: harm risk continues (misinformation still spreading), measures proven effective (reduced amplification documented), investigation ongoing requiring more time, proportionality maintained (YouTube complied without undue burden). Commission renews interim measures for additional 3 months with slight modifications based on implementation experience. After 6 months total, investigation concludes with Article 73 non-compliance decision making interim algorithmic adjustments permanent requirements.
For Commission - Ordering Interim Measures: Assess urgency and serious damage risk objectively focusing on recipient harm not enforcement convenience. Establish prima facie finding with substantial preliminary evidence avoiding speculative intervention. Tailor measures to specific harms requiring remediation balancing effectiveness with provider rights. Set reasonable durations aligned with investigation timeline and harm nature. Monitor compliance rigorously given time-sensitive protective purpose. Evaluate renewal necessity if investigation extends beyond initial period. Consider interim measures as harm prevention not punishmentâfinal liability determined by Article 73/74 decisions.
For VLOPs/VLOSEs - Responding to Interim Measures: Comply promptly recognizing serious damage prevention urgency and Article 74 6% fine risk for non-compliance. Allocate resources enabling rapid implementation even if measures require significant technical or organizational changes. Document compliance thoroughly demonstrating good faith efforts. Engage with Commission constructively if implementation challenges arise proposing alternative approaches achieving protective objectives. Continue cooperating with underlying investigation recognizing interim measures are provisionalâfull investigation may vindicate provider if prima facie finding not sustained by complete evidence. Consider voluntary measures preempting interim orders if investigation reveals serious harm risks meriting immediate action.