Chapter 4|Supervision, Investigation, Enforcement and Monitoring of VLOPs and VLOSEs|📖 22 min read
1. If, during proceedings under this Section, the provider of the very large online platform or of the very large online search engine concerned offers commitments to ensure compliance with the relevant provisions of this Regulation, the Commission may by decision make those commitments binding on the provider of the very large online platform or of the very large online search engine concerned and declare that there are no further grounds for action.
2. The Commission may, upon request or on its own initiative, reopen the proceedings:
(a) where there has been a material change in any of the facts on which the decision was based;
(b) where the provider of the very large online platform or of the very large online search engine concerned acts contrary to its commitments;
(c) where the decision was based on incomplete, incorrect or misleading information provided by the provider of the very large online platform or of the very large online search engine concerned or other person referred to in Article 67(1).
3. Where the Commission considers that the commitments offered by the provider of the very large online platform or of the very large online search engine concerned are unable to ensure effective compliance with the relevant provisions of this Regulation, it shall reject those commitments in a reasoned decision when concluding the proceedings.
Understanding This Article
Article 71 establishes commitments mechanism enabling European Commission to accept legally binding undertakings from very large online platforms (VLOPs) and very large online search engines (VLOSEs) during enforcement proceedings, providing alternative resolution pathway that can terminate investigation when offered commitments adequately address identified violations. Provision imported from EU competition law framework (Article 9 Regulation 1/2003) and adapted for DSA enforcement context, creating regulatory settlement procedure balancing enforcement efficiency against deterrence objectives.
Procedural Context and Triggering Conditions: Article 71 applies exclusively during Article 66 enforcement proceedings - formal investigations Commission initiates when reasonable grounds exist that VLOP/VLOSE infringes Regulation provisions (typically Articles 33-43 obligations specific to designated platforms). Commitment offers can arise at any investigation stage: following initial Article 67 information requests revealing potential violations, during Article 68 interviews and statement-taking, after Article 69 on-site inspections, or when Commission issues preliminary assessment outlining concerns. No statutory deadline constrains when providers can offer commitments, though practical considerations favor earlier proposals enabling faster resolution and reduced investigatory costs. Commission lacks obligation to solicit or consider commitment proposals - discretion rests entirely with Commission whether to engage in commitment negotiations or proceed directly to formal Article 73 non-compliance decision.
Commitment Adequacy Assessment (Paragraph 3): Commission must evaluate whether offered commitments 'ensure effective compliance with the relevant provisions of this Regulation' - high standard requiring commitments address not merely technical violations but underlying systemic issues creating non-compliance risk. Adequacy assessment examines five dimensions: (1) Scope - do commitments cover all identified violations or only subset, (2) Specificity - are obligations concrete and measurable versus vague aspirational statements, (3) Verifiability - can compliance be objectively monitored and assessed, (4) Enforceability - do commitments include mechanisms ensuring implementation (timelines, milestones, reporting), (5) Durability - do commitments create lasting structural changes or temporary band-aids. If commitments fail adequacy threshold, paragraph 3 mandates Commission reject them through reasoned decision explaining insufficiency and conclude proceedings via Article 73 non-compliance determination.
Binding Effect and Legal Consequences: When Commission accepts commitments under paragraph 1, three legal effects follow immediately: First, commitments become legally binding on provider - breach constitutes independent violation subject to Article 74(1)(c) fines up to 6% annual global turnover. Second, Commission must declare 'no further grounds for action' regarding conduct covered by commitment decision - creates res judicata effect preventing duplicate enforcement proceedings addressing same behavior. Third, investigation formally closes without Article 73 non-compliance finding - provider avoids stigma of formal violation determination while achieving compliance certainty. Binding commitment decisions published in Official Journal and Commission website, creating public record and transparency regarding enforcement outcomes even when formal infringement not declared.
Reopening Proceedings (Paragraph 2): Commission can revive closed investigations under three circumstances: (a) Material factual changes - where underlying facts relied upon in accepting commitments substantially evolve (e.g., VLOP introduces new service feature creating compliance risks not anticipated in original commitments, user base growth exceeds projections underlying commitment adequacy assessment, technological developments enable more effective compliance measures than those committed). Paragraph 2(a) requires changes be 'material' - minor factual variations insufficient to justify reopening. (b) Commitment breach - where provider 'acts contrary to its commitments' either through explicit violation (failing to implement committed measures by specified deadline) or implicit non-compliance (implementing commitments in form but not substance, e.g., creating transparency report technically satisfying commitment language but designed to obscure rather than illuminate). Breach determination requires Commission demonstrate commitment violation through Article 67 information requests, Article 68 interviews, Article 69 inspections, or other evidentiary sources. (c) False/incomplete information - where commitment decision 'based on incomplete, incorrect or misleading information provided by the provider' during negotiations. Applies when provider deliberately conceals relevant facts, provides false data supporting commitment adequacy, or omits material information Commission needed to evaluate proposal properly. Negligent omissions may suffice - paragraph 2(c) not limited to intentional fraud.
Reopening Procedures and Initiators: Paragraph 2 specifies Commission may reopen proceedings 'upon request or on its own initiative' - enables both reactive (responding to third-party petition) and proactive (Commission monitoring) reopening. Request sources include: affected Member State Digital Services Coordinators observing commitment implementation failures, civil society organizations documenting non-compliance, competing platforms identifying evasive tactics, individual users or groups experiencing continued harm despite commitments. Commission conducts preliminary assessment determining whether request demonstrates prima facie case for reopening under paragraph 2(a), (b), or (c) conditions. Own-initiative reopening typically follows Commission's ongoing monitoring commitment implementation through periodic reporting requirements, independent audits, algorithmic analysis, user complaints, or other oversight mechanisms. If Commission reopens proceedings, investigation restarts from point of termination - Commission can issue new Article 67 information requests, conduct Article 68 interviews, order Article 69 inspections, and ultimately adopt Article 73 non-compliance decision if violations persist.
Strategic Considerations for Providers: VLOP/VLOSE facing Article 66 investigation confronts strategic choice between three pathways: (1) Contest charges and risk formal Article 73 non-compliance decision with potential Article 74 fines up to 6% global turnover plus Article 75 periodic penalties, (2) Offer Article 71 commitments addressing Commission concerns without admitting liability, (3) Implement Article 70 interim measures if ordered while continuing investigation toward eventual outcome. Commitment option offers significant advantages: avoids formal infringement finding preserving reputation; enables provider input shaping compliance requirements rather than imposed remedies; creates closure and regulatory certainty; typically faster than full Article 73 proceedings saving legal and compliance costs; allows prospective remediation without retroactive penalties for past violations. However, commitments also impose costs: become legally binding with breach subject to fines; public disclosure may reveal business practices provider preferred keeping confidential; precedent effects may prompt competitors' commitment demands; implementation costs can be substantial especially for structural or algorithmic changes.
Strategic Considerations for Commission: Commission accepting Article 71 commitments versus pursuing Article 73 formal decision balances competing objectives: Commitment benefits include faster compliance (provider implementing reforms immediately versus delayed implementation pending appeals), resource efficiency (avoiding lengthy investigation and potential judicial review), flexible remedies (negotiated solutions may address underlying problems more effectively than standardized sanctions), private information (providers reveal business practices during negotiations informing Commission's regulatory understanding). Commitment costs include reduced deterrence (no formal violation finding and financial penalty sends weaker signal to other platforms), limited precedent (commitment decisions less doctrinally instructive than reasoned Article 73 decisions), potential inadequacy (negotiated commitments may fall short of optimal compliance standards Commission could impose through formal decision), monitoring burden (verifying commitment implementation requires ongoing Commission resources). Commission particularly favors commitments when: violations result from good-faith misinterpretation rather than willful non-compliance; novel issues where formal decisions would struggle with legal certainty; time-sensitive risks where immediate action needed; provider demonstrates genuine cooperation and compliance commitment.
Comparison with Competition Law Framework: Article 71 closely parallels Article 9 of Regulation 1/2003 (EU competition commitments), but key differences reflect DSA's distinct enforcement context: (1) Scope - competition commitments apply to all undertakings under investigation, while Article 71 limited exclusively to VLOPs/VLOSEs (Articles 1-32 violations by smaller intermediaries handled by Member State authorities under Article 51 without commitment option), (2) Publicity - Competition framework requires market testing via public consultation before accepting commitments, while DSA lacks similar requirement though Commission typically consults Article 61 Board and affected Digital Services Coordinators, (3) Cartels exemption - Competition law prohibits commitments for hardcore violations like price-fixing, while DSA contains no categorical exclusions enabling commitments for any violation severity, (4) Fines - Competition law typically foregoes fines when accepting commitments, while DSA Article 74(1)(c) explicitly authorizes fines for commitment breaches suggesting enforcement complementarity rather than substitution.
Relationship with Other Enforcement Tools: Article 71 commitments interact with DSA's broader enforcement toolkit: Differs from Article 70 interim measures in temporal scope (interim measures temporary pending investigation, commitments permanent absent reopening), legal basis (interim measures based on prima facie finding, commitments require adequate compliance assurance), and provider role (interim measures imposed unilaterally, commitments negotiated consensually). Differs from Article 73 non-compliance decisions by avoiding formal infringement determination and typically omitting financial penalties, though Article 74 fines remain available for commitment breaches. Complements Article 66 investigation powers (Articles 67-69) by providing resolution mechanism short of formal Article 73 decision. Can incorporate Article 72 monitoring provisions requiring providers submit periodic reports, undergo audits, or implement technical measures enabling compliance verification. May reference Article 45 codes of conduct or Article 48 crisis protocols as commitment implementation mechanisms.
Temporal Dynamics and Duration: Article 71 commitments lack statutory expiration date - remain binding until Commission formally terminates commitment decision or proceedings reopened under paragraph 2. However, commitment decisions typically specify implementation timelines creating de facto temporal structure: immediate obligations (cease specific practices within 30 days), short-term measures (implement transparency features within 3-6 months), medium-term reforms (deploy risk assessment systems within 12 months), ongoing duties (maintain compliance monitoring indefinitely). After initial implementation period, commitments transition to steady-state compliance with periodic reporting demonstrating continued adherence. Providers cannot unilaterally withdraw from commitments but may petition Commission to modify or terminate commitment decision based on changed circumstances, proportionality concerns, or obsolescence due to regulatory evolution. Commission retains discretion granting or denying such requests.
Judicial Review and Legal Safeguards: Commitment decisions constitute definitive Commission acts challengeable before EU Courts under TFEU Article 263: Providers may contest Commission rejecting offered commitments under paragraph 3, arguing commitments adequate and rejection unreasonable. Third parties may challenge Commission accepting commitments as inadequately protecting their interests or enabling anti-competitive behavior. Member States may seek annulment alleging insufficient stakeholder consultation or inadequate protection of national interests. Grounds for judicial review include: lack of competence, infringement of essential procedural requirements, infringement of Treaties or implementing rules, misuse of powers. Courts apply proportionality review ensuring commitment requirements necessary and appropriate to achieve compliance objectives without imposing excessive burdens. Commitment decisions also subject to TFEU Article 265 actions for failure to act if Commission fails to assess offered commitments within reasonable time.
Key Points
Commission has discretionary power to accept commitments from VLOPs/VLOSEs during enforcement proceedings as alternative to formal non-compliance decisions
Accepted commitments become legally binding through Commission decision and can close investigation if they adequately address violations
Commitments must ensure 'effective compliance' with relevant DSA provisions - inadequate commitments must be rejected with reasoned decision
Commission can reopen proceedings if material facts change, provider breaches commitments, or original decision based on false/incomplete information
Reopening possible 'upon request' (from stakeholders, Member States, Board) or Commission's own initiative ('ex officio')
Creates three-way enforcement outcome: (1) formal non-compliance decision under Article 73, (2) accepted binding commitments under Article 71, or (3) rejected commitments followed by Article 73 decision
Commitment breach constitutes independent violation subject to fines up to 6% global turnover under Article 74(1)(c)
Mechanism imported from EU competition law (Articles 9 and 10 of Regulation 1/2003) adapted for DSA enforcement context
Commitment decisions must declare 'no further grounds for action' - creates res judicata effect preventing duplicate proceedings on same conduct
Commission retains full discretion to reject commitments and proceed to formal Article 73 non-compliance decision even if commitments offered
Commitments typically include structural changes, procedural reforms, transparency measures, monitoring mechanisms, and reporting obligations
No statutory deadline for commitment offers - can occur at any point during Article 66 proceedings before final decision
Commitment negotiations balance enforcement efficiency (avoiding lengthy Article 73 proceedings) against deterrence and precedent-setting value of formal decisions
Commitment adequacy assessment requires technical expertise - Commission typically consults Article 61 European Board and affected Member State Digital Services Coordinators
TikTok Lite case (August 2024) demonstrates practical application: Commission accepted binding commitments instead of formal non-compliance decision
Practical Application
TikTok Lite Case Study - Paradigmatic Commitment Application: August 5, 2024, Commission adopted binding commitment decision terminating investigation DSA.100121 regarding TikTok Lite's 'Task and Reward' program under Articles 34 (risk assessment) and 35 (risk mitigation). Investigation initiated April 22, 2024 after TikTok launched program in France and Spain rewarding users with virtual currency (convertible to gift vouchers or cash) for engaging with content (watching videos, liking posts, following creators, inviting friends). Commission concerned program's addictive design mechanics and lack of systemic risk assessment violated VLOPs' Article 34 duty to identify 'addiction and harm to minors' risks and Article 35 obligation to implement effective mitigation measures. Rather than proceeding to formal Article 73 non-compliance decision with potential Article 74 fines, TikTok offered comprehensive commitments Commission accepted as ensuring effective compliance under Article 71. Commitments included: (1) Permanent withdrawal of Task and Reward program throughout European Union with commitment not to relaunch in any form without prior Commission approval following adequate Article 34 risk assessment and Article 35 mitigation implementation, (2) Enhanced Article 34 risk assessment procedures specifically addressing addictive design patterns and vulnerable user groups before launching new monetization or engagement features, (3) Article 35 risk mitigation measures including time limits, engagement warnings, and features enabling users to monitor and control their usage, (4) Independent auditing of new feature launches verifying Article 34/35 compliance before deployment, (5) Quarterly reporting to Commission documenting feature development pipeline, risk assessments conducted, mitigation measures implemented. Commitment decision demonstrates Article 71's practical value: achieved immediate harm cessation (program terminated within days versus months-long Article 73 proceedings), imposed structural reforms addressing underlying compliance failures, created ongoing monitoring mechanisms, avoided lengthy litigation, enabled Commission to reallocate enforcement resources to other investigations. However, decision also illustrates commitment limitations: no formal infringement finding potentially undermining deterrence, no financial penalty for past violations, precedent value limited compared to reasoned Article 73 decision establishing legal principles.
AliExpress Advertising Transparency Commitments: Commission investigating AliExpress (designated VLOP December 2023) for potential Article 26 (advertising transparency) and Article 27 (recommender system transparency) violations. Preliminary assessment found AliExpress displayed targeted advertisements without providing required transparency information enabling users to understand: advertiser identity, sponsorship status, targeting parameters used, user data processed for ad delivery. Additionally, recommender systems displayed products based on opaque algorithmic curation without Article 27-mandated explanations of 'main parameters' determining recommendations and meaningful information about ranking logic. Rather than await Article 73 non-compliance decision, AliExpress offered Article 71 commitments: (1) Article 26 compliance measures - Implement prominent 'Sponsored' labels on all paid placements distinguishing advertisements from organic search results; provide advertiser business name and registration information accessible via one-click disclosure; disclose targeting categories used for ad delivery (demographic, behavioral, contextual) with explanations sufficiently specific enabling informed user understanding; enable users to access, export, and delete advertising preferences data through dedicated privacy dashboard. (2) Article 27 compliance measures - Disclose product ranking main parameters including: user search query matching, price competitiveness, seller reputation scores, shipping speed, customer review ratings, personalization factors; provide toggle enabling users to view recommendations based on non-personalized ranking (e.g., best-selling, highest-rated) versus personalized algorithmic curation; implement interface enabling users to correct inaccurate inferences underlying recommendations (e.g., 'I don't want to see this category because recommendation based on incorrect assumption about my interests'). (3) Implementation timeline - Deploy Article 26 advertising transparency features within 90 days EU-wide; complete Article 27 recommender transparency within 180 days; submit monthly progress reports to Commission documenting implementation status. (4) Verification mechanisms - Undergo independent Article 37 audit within 12 months verifying Article 26/27 compliance; enable Commission to conduct Article 69 inspections with 48-hour notice to verify commitment implementation; provide Article 67 information demonstrating transparency feature usage rates and user comprehension. Commission assessed commitments under paragraph 3 adequacy standard, concluding measures sufficiently concrete, verifiable, and enforceable to ensure effective Article 26/27 compliance. Commitment decision issued, formally terminating investigation while establishing binding legal obligations. Case illustrates Article 71's utility for addressing first-generation compliance failures by recently designated VLOPs lacking prior DSA implementation experience - commitments enable constructive compliance pathway without immediately imposing maximum fines on platforms still developing regulatory maturity.
Hypothetical Commitment Rejection - Inadequate Systemic Risk Mitigation: Commission investigating major social media platform for Article 35 failures regarding election manipulation risks during French presidential election. Article 67 information requests, Article 68 interviews with content moderation staff, and Article 69 algorithmic inspections revealed: coordinated inauthentic behavior amplifying false candidate information, micro-targeted political advertising exploiting psychological vulnerabilities, recommender algorithms creating filter bubbles reinforcing partisan polarization, insufficient content moderation for political deepfakes. Platform offers commitments: (1) Increase content moderator headcount by 15% during election periods, (2) Enhance user reporting tools for political misinformation, (3) Display source credibility indicators for political content from low-authority domains, (4) Provide transparency reports documenting content removals during election periods. Commission evaluates commitments under paragraph 3 adequacy standard and concludes they are insufficient to ensure effective Article 35 compliance because: Scope deficiency - commitments address only election periods despite Article 35 requiring continuous systemic risk mitigation year-round; focus on reactive content moderation rather than proactive algorithmic adjustments preventing harm; omit recommender system modifications reducing polarization and filter bubble effects; lack measures addressing micro-targeted manipulation advertising. Specificity problems - 15% moderator increase provides no baseline data enabling adequacy assessment; 'enhance user reporting tools' lacks concrete feature specifications; source credibility indicators undefined regarding scoring methodology and display prominence; transparency reports don't commit to meaningful metrics (removal accuracy rates, false positive/negative rates, appeals outcomes). Verifiability limitations - no independent auditing or Commission inspection rights verifying implementation; no user surveys assessing whether transparency measures effectively inform electorate; no algorithmic testing demonstrating reduced polarization or manipulation. Commission therefore exercises paragraph 3 authority rejecting commitments through reasoned decision explaining inadequacy, then proceeds to formal Article 73 non-compliance decision imposing Article 74 fines and Article 75 periodic penalties until platform implements adequate remedies. Case demonstrates Commission's quality control function - commitment mechanism doesn't enable platforms to evade meaningful compliance through superficial undertakings.
Reopening Example - Material Factual Change (Paragraph 2(a)): Commission accepted Article 71 commitments from video-sharing VLOP regarding Article 35 mitigation of minors' exposure to harmful content (eating disorder promotion, self-harm tutorials, sexual content). Commitments included: age verification systems, content filters blocking harmful material from minors' feeds, parental controls enabling usage monitoring, default privacy settings for minor accounts. Two years later, platform introduces generative AI feature enabling users to create custom video content through text prompts. Civil society organizations document minors using AI tools to generate harmful content (realistic self-harm imagery, synthetic eating disorder 'thinspiration', AI-generated sexual content) that bypass original commitment mechanisms (age verification ineffective when minors generate content themselves, content filters trained on human-created material don't detect AI-generated variants, parental controls don't apply to user-generated AI content). Organizations petition Commission to reopen Article 71 proceedings under paragraph 2(a) material change provision. Commission assesses whether generative AI introduction constitutes 'material change in facts on which decision was based': Original commitment decision assumed static content ecosystem where harmful material came from external creators and could be filtered; AI generation fundamentally alters threat model enabling minors to create harmful content personalized to their vulnerabilities; original mitigation measures inadequate for AI-mediated risks; user base demographics shifted toward younger users increasing minors' harm exposure. Commission determines changes sufficiently material to justify reopening, issues Article 67 information requests regarding AI feature's risks, conducts Article 68 interviews with AI safety team, performs Article 69 inspection of generative AI training data and content filters. Investigation reveals platform deployed AI feature without conducting Article 34 risk assessment for minor harm implications and without adapting Article 35 mitigation commitments to address AI-specific risks. Commission issues new Article 73 non-compliance decision for both original commitment breach (deploying feature undermining commitment effectiveness without Commission consultation) and independent Article 34/35 violations (failing to assess and mitigate AI-related risks to minors).
Reopening Example - Commitment Breach (Paragraph 2(b)): Commission accepted commitments from major e-commerce VLOP regarding Article 40 dark pattern prohibition. Investigation found platform employed manipulative interface designs including: fake countdown timers creating false urgency ('Only 3 hours left!' when timer reset daily), misleading scarcity claims ('Only 2 left in stock!' when inventory actually abundant), biased choice architecture making cancellation difficult while purchase easy, pre-checked boxes adding optional services users didn't request, deceptive button designs where 'No thanks' button smaller and less visible than 'Accept' button. Platform offered commitments: (1) Remove fake urgency timers and scarcity claims unless reflecting genuine inventory limitations verified through database evidence, (2) Equalize choice architecture making cancellation/unsubscription equally easy as purchase/subscription via symmetrical user interface design, (3) Prohibit pre-checked optional service boxes requiring users to actively opt-in to additions, (4) Implement uniform button sizing and prominence for accept/decline choices, (5) Conduct quarterly internal audits identifying dark pattern violations, (6) Provide annual Article 67 reports documenting dark pattern audits and remediation measures. Commission accepted commitments as ensuring Article 40 effective compliance and terminated investigation. Two years later, investigative journalists document that platform implemented commitments in form but not substance: Urgency timers removed but replaced with equally manipulative 'trending now - selling fast!' badges implying scarcity without explicit claims; cancellation nominally possible but requires navigating 8-screen flow with multiple retention offers while purchase requires one click; pre-checked boxes eliminated but replaced with deceptive button placement where unwanted service addition button positioned where users expect 'Continue' button; audits conducted but internal audit reports reveal systematic identification of dark pattern violations that platform failed to remediate. Consumer protection organization petitions Commission to reopen proceedings under paragraph 2(b) for acting contrary to commitments. Commission issues Article 67 information requests obtaining internal audit documentation revealing platform's awareness of ongoing violations, conducts Article 68 interviews where design team admits deliberately implementing 'commitment-compliant' interfaces achieving same manipulative effects through alternative techniques, performs Article 69 inspection revealing internal communications discussing how to 'satisfy the Brussels bureaucrats without actually changing business model.' Commission determines platform violated commitments both technically (failed to remediate audited violations) and substantively (designed evasive tactics achieving same dark pattern effects through different mechanisms). Issues Article 73 non-compliance decision for original Article 40 violations plus Article 74 fines for commitment breach under Article 74(1)(c) - fine calculated at higher 6% rate due to deliberate evasive conduct demonstrating bad faith.
Reopening Example - False Information (Paragraph 2(c)): Commission investigating music streaming VLOP for Article 28 (minor protection) violations regarding explicit content exposure. Platform offered commitments based on technical representations about content filtering capabilities: claimed proprietary AI system could detect explicit lyrics, sexual content, violent themes, drug references with 98% accuracy enabling effective minor protection through automated filtering. Platform committed to: enable default filtering for minor accounts blocking explicit content, provide parental controls with granular content category restrictions, implement age-appropriate recommendations excluding explicit material from minors' discovery features. Commission assessed commitment adequacy based on platform's accuracy representations - 98% filtering accuracy appeared sufficient for effective Article 28 compliance. However, independent researchers subsequently conducted empirical testing revealing: actual filtering accuracy only 73% for explicit lyrics, 61% for sexual content references, 54% for violent themes; AI system trained exclusively on English-language content with negligible accuracy for non-English material (French, German, Spanish, Polish explicit content routinely misclassified as acceptable); platform's internal testing documents (obtained through Article 69 inspection during separate investigation) showed company knew accuracy rates substantially lower than 98% claimed but provided inflated figures to Commission to obtain commitment acceptance. Academic researchers and parents' advocacy groups petition Commission to reopen proceedings under paragraph 2(c) arguing commitment decision 'based on incorrect or misleading information provided by the provider.' Commission assesses whether information misrepresentation material to commitment acceptance: Commission relied heavily on accuracy claims when evaluating commitment adequacy under paragraph 3; had accurate performance data been provided, Commission likely would have rejected commitments as insufficient or demanded additional measures (human review layers, enhanced training data diversity, parental opt-in rather than default filtering acknowledging accuracy limitations). Commission reopens proceedings, issues Article 67 requests for all internal testing documentation and algorithm performance data, conducts Article 68 interviews with AI engineering team and executives involved in commitment negotiations, performs Article 69 inspection of filtering algorithm training data and performance benchmarks. Investigation confirms platform knowingly provided false accuracy information during commitment negotiations. Commission issues Article 73 non-compliance decision for Article 28 violations and Article 74 fines calculated at aggravated level due to deliberate Commission deception - misrepresenting technical capabilities to regulators constitutes serious compliance failure warranting enhanced penalties beyond underlying substantive violations.
Implementation Best Practices for Providers: VLOPs/VLOSEs considering Article 71 commitment offers should follow structured approach maximizing acceptance likelihood and minimizing reopening risk: (1) Conduct honest gap analysis - Comprehensively assess current practices against DSA requirements using internal audits, external consultants, Article 37 audit mechanisms; identify all compliance shortfalls not merely those Commission investigation targeted; develop evidence-based understanding of what changes necessary for genuine compliance rather than cosmetic adjustments. (2) Develop concrete implementation plans - Transform compliance objectives into specific measurable actions with timelines, milestones, responsibility assignments, budget allocations; avoid vague aspirational commitments like 'improve content moderation' in favor of specific measures like 'deploy natural language processing system achieving 90% accuracy for hate speech detection in [specified languages] by [date] verified through [methodology].' (3) Build in verifiability mechanisms - Propose independent auditing, Commission inspection rights, transparent metrics, user surveys, technical testing protocols enabling objective verification of commitment implementation; demonstration of commitment to transparency enhances Commission confidence in adequacy. (4) Anticipate technological and business evolution - Design commitments flexible enough to remain effective despite future platform changes; include clauses requiring Article 34 risk assessment and Commission consultation before deploying features that may affect commitment effectiveness; build in periodic commitment review mechanisms enabling updates as risks and technologies evolve. (5) Consult stakeholders - Engage with Digital Services Coordinators, civil society organizations, user representatives, academic researchers when developing commitments; demonstrate stakeholder input and support when presenting commitments to Commission; increases commitment legitimacy and reduces third-party challenge risk. (6) Provide transparent information - Supply accurate complete data to Commission during negotiations; acknowledge limitations and challenges openly rather than overpromising capabilities; misrepresentation creates paragraph 2(c) reopening vulnerability and damages regulatory relationship. (7) Establish robust implementation governance - Create executive-level commitment oversight, dedicated compliance teams, regular progress monitoring, escalation procedures for implementation obstacles; treat commitments as legally binding obligations requiring same rigor as contractual duties rather than mere regulatory suggestions.
Multi-Jurisdiction Coordination Challenges: Article 71 commitments apply only to VLOP/VLOSE conduct within European Union, creating potential coordination challenges with parallel enforcement in other jurisdictions. Platform facing simultaneous DSA investigation by European Commission, Digital Markets Act investigation by Commission, UK Online Safety Act investigation by Ofcom, Australian Online Safety Act investigation by eSafety Commissioner, Brazilian Internet Law investigation by Federal Court may receive conflicting compliance demands across jurisdictions. For example, Commission may accept Article 71 commitments requiring transparent disclosure of content moderation criteria and automated decision-making logic to enhance Article 17 (statement of reasons) compliance, while parallel UK investigation demands certain trade secret protections for moderation systems preventing malicious actor gaming. Or DMA commitments regarding data interoperability may conflict with DSA commitments about limiting data sharing to mitigate Article 35 systemic risks. Platforms must navigate these tensions through: (1) Engagement with multiple regulators to identify potential conflicts before finalizing commitments, (2) Designing commitments specific enough to satisfy each jurisdiction's requirements while flexible enough to avoid contradictions, (3) Seeking regulator coordination - Commission often consults peer regulators when accepting commitments affecting shared enforcement interests, (4) Implementing jurisdiction-specific measures where conflicts unavoidable - e.g., higher transparency in EU pursuant to DSA commitments while maintaining trade secret protections in other markets, (5) Requesting Commission to structure commitments acknowledging other jurisdictions' legitimate interests - Commission has discretion to accept commitments conditional on non-conflicting with member states' national security, public safety, criminal law enforcement interests.