Chapter 4|Supervision, Investigation, Enforcement and Monitoring of VLOPs and VLOSEs|📖 11 min read
1. The powers of the Commission pursuant to Articles 74 and 76 shall be subject to a limitation period of five years.
2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.
3. Any action taken by the Commission or by a Digital Services Coordinator of a Member State, acting at the request of the Commission, for the purpose of the investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The interruption shall take effect on the date on which the action is notified to the provider of the very large online platform or of the very large online search engine concerned or to any other person referred to in Article 67(1). Actions which interrupt the running of the period shall include the following:
(a) written requests for information by decision pursuant to Article 67;
(b) written requests for information by decision pursuant to Article 68;
(c) inspections by decision pursuant to Article 69;
(d) the opening of proceedings by the Commission pursuant to Article 66.
4. The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.
5. After each interruption, time shall start running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which the limitation period is suspended pursuant to paragraph 4.
Understanding This Article
Article 77 establishes temporal limits on the European Commission's authority to impose penalties under the DSA, creating a 5-year limitation period for both fines under Article 74 and periodic penalty payments under Article 76. This limitation period serves multiple important legal functions: it provides legal certainty for platforms by establishing a definitive timeframe beyond which historical conduct cannot be penalized; it encourages the Commission to investigate and prosecute violations efficiently rather than allowing enforcement actions to remain open indefinitely; and it reflects the principle that enforcement actions should be based on relatively recent conduct rather than violations from the distant past.
The limitation period begins to run on the day the infringement is committed. For continuing violations, such as ongoing failure to conduct required risk assessments under Article 34, the infringement continues to be committed each day the violation persists, meaning the limitation period for each day's violation begins on that day. For completed violations, such as a one-time failure to respond to a Commission information request, the limitation period begins when the obligation was breached. This distinction is crucial because continuing violations can be prosecuted throughout their duration, while completed violations become time-barred five years after occurrence.
However, Article 77(2) establishes an absolute maximum limitation period of ten years, equal to twice the basic limitation period. Even if the limitation period is repeatedly interrupted by Commission actions, the powers to impose penalties expire when ten years have elapsed without the Commission imposing a fine or periodic penalty payment. This absolute maximum prevents enforcement actions from continuing indefinitely through repeated interruptions and provides ultimate temporal certainty.
The limitation period for imposition is suspended while the Commission's penalty decision is subject to proceedings before the Court of Justice of the European Union (CJEU). When a platform appeals a Commission penalty decision to the CJEU, the limitation period stops running and only resumes if the court annuls the penalty decision and remands the matter to the Commission. This suspension prevents platforms from using judicial appeals to run out the limitation period while the Commission's decision is under judicial review, ensuring that successful Commission enforcement is not undermined by procedural timing.
Interruption of the limitation period occurs through specific Commission actions defined in Article 77(3). Each interruption starts the limitation period running afresh from zero. Commission actions that interrupt the limitation period include: (1) Requests for information under Article 67; (2) Requests for explanations or access to data/algorithms under Article 67; (3) Orders for access to databases and algorithms under Article 72; (4) Document retention orders under Article 72; (5) Inspection orders under Article 69; (6) Interim measures under Article 70; (7) Decisions making commitments binding under Article 71; (8) Non-compliance decisions under Article 73; (9) Decisions imposing fines under Article 74; and (10) Decisions imposing periodic penalty payments under Article 76. This comprehensive list means the Commission has numerous tools to interrupt limitation periods during investigations.
The practical effect of these interruption provisions is that active Commission investigations will typically prevent limitation periods from expiring. Each significant investigatory action restarts the five-year clock. However, if the Commission opens an investigation but then takes no formal action for five years, the limitation period could expire, preventing penalty imposition. The ten-year absolute maximum becomes relevant in prolonged investigations where the Commission repeatedly takes actions interrupting the limitation period; even with multiple interruptions, penalties cannot be imposed more than ten years after the initial infringement.
The relationship between Article 77 (limitation on imposition) and Article 78 (limitation on enforcement) is important to understand. Article 77 governs how long the Commission has to adopt a decision imposing penalties. Article 78 governs how long the Commission has to enforce and collect penalties after a decision has been adopted. These are separate limitation periods serving distinct purposes. A violation occurring in 2024 must have penalties imposed by 2029 (5 years) or 2034 at the absolute latest (10 years). Once imposed, penalties must be collected within 5 years of the decision becoming final under Article 78.
From the Commission's perspective, the limitation period creates pressure to move efficiently through investigation, preliminary findings, allowing platforms to be heard under Article 79, and final penalty decisions. For platforms, understanding limitation periods is important for assessing exposure to historical conduct. If a potential violation occurred more than five years ago and the Commission has taken no action interrupting the limitation period, penalties for that specific violation may no longer be imposable. However, platforms should carefully analyze whether the violation was continuing rather than completed, whether any Commission actions interrupted the limitation period, and whether the ten-year absolute maximum applies.
Legal professionals advising on DSA compliance should maintain limitation period calendars for any potential violations or Commission investigatory actions. These calendars should track: (1) The date each potential violation occurred or began; (2) All Commission actions that may have interrupted limitation periods; (3) The current state of limitation periods for each potential violation; (4) The absolute ten-year deadline for each violation. This tracking enables accurate assessment of ongoing penalty exposure and helps evaluate litigation strategy if the Commission attempts to impose penalties for violations that may be time-barred.
Key Points
Establishes 5-year limitation period for Commission to impose fines (Article 74) and periodic penalties (Article 76)
Limitation period begins on the day the infringement is committed; for continuing violations, each day constitutes a new infringement with separate limitation period
Absolute maximum limitation period of 10 years (twice the basic period) prevents indefinite prosecution even with interruptions
Limitation period suspends while Commission penalty decisions are subject to Court of Justice proceedings, preventing appeals from running out the clock
Commission investigatory actions interrupt limitation period, restarting the 5-year clock: information requests, inspections, interim measures, commitments, non-compliance decisions
Separate from Article 78 enforcement limitation: Article 77 governs time to impose penalties, Article 78 governs time to collect them
For continuing violations, Commission can impose penalties for most recent 5 years even if violation has persisted longer
Platforms should maintain limitation period tracking for potential violations and Commission actions to assess exposure to historical conduct penalties
Practical Application
For platform compliance officers and legal counsel, understanding and tracking limitation periods is essential for managing regulatory risk and exposure. When a potential DSA violation occurs or is discovered, compliance teams should immediately document: (1) The exact date the violation occurred or began; (2) Whether the violation is a continuing violation that persists until corrected, or a completed violation that occurred on a specific date; (3) All Commission communications or actions that might interrupt the limitation period; (4) The resulting limitation status. This documentation creates a clear record enabling accurate assessment of whether penalties remain imposable for historical conduct.
Platforms under active Commission investigation should track all Commission actions carefully because each action listed in Article 77(3) restarts the limitation period. When the Commission sends an information request under Article 67, the limitation period for the underlying violation restarts from zero. If the Commission then conducts an inspection under Article 69 two years later, the limitation period restarts again. Platforms should maintain chronological logs of all Commission actions, noting how each action affects limitation period calculations. This tracking is particularly important for investigations spanning multiple years where the difference between five years from the initial violation versus five years from the most recent Commission action can be significant.
In situations where the Commission appears to have abandoned an investigation without taking action for an extended period, platforms may consider whether limitation periods have expired. If more than five years have passed since a completed violation occurred and more than five years have passed since any Commission action interrupting the limitation period, penalties for that violation may no longer be imposable. Legal counsel could potentially raise limitation defenses if the Commission later attempts to impose penalties. However, counsel must carefully verify that: (1) The violation was completed, not continuing; (2) No Commission actions interrupted the limitation period; (3) The ten-year absolute maximum has not prevented limitation from expiring despite interruptions.
The ten-year absolute maximum limitation becomes relevant in prolonged investigations with multiple interruptions. Consider a scenario where a violation occurred on January 1, 2024. The Commission sends an information request on December 31, 2028 (restarting the limitation period just before five years expired). The Commission then sends another information request on December 31, 2033 (again restarting the limitation period). Despite these interruptions, the absolute ten-year maximum means penalties cannot be imposed after January 1, 2034. Platforms subject to very lengthy investigations should track whether the absolute maximum is approaching, potentially limiting the Commission's ability to impose penalties despite continued investigatory actions.
When the Commission adopts a penalty decision and the platform appeals to the CJEU, the limitation period for imposition suspends during judicial proceedings. This suspension prevents the following scenario: Commission imposes penalty in year 4 of the limitation period; platform appeals; judicial proceedings take 3 years; court annuls the decision and remands; Commission's time to impose penalties has expired. Instead, the suspension means that after remand, the Commission retains whatever time remained in the limitation period before the original penalty decision. Platforms pursuing judicial appeals should understand that successful annulment and remand does not automatically render penalties time-barred if the matter returns to the Commission.
For continuing violations, such as ongoing failure to comply with Article 34 risk assessment obligations, the limitation period runs separately for each day's violation. The Commission could impose penalties for the most recent five years of a continuing violation even if the violation has persisted for ten years or longer. The practical implication is that platforms cannot escape penalty liability for continuing violations simply by allowing time to pass; correction of the violation is necessary. However, the ten-year absolute maximum means that for conduct more than ten years in the past, penalties cannot be imposed even if the violation was continuing.
Platforms should consider limitation periods when evaluating whether to voluntarily disclose potential historical violations to the Commission. If a potential violation occurred years ago, the platform has implemented corrective measures, and several years have passed without Commission action, the limitation period may be approaching expiration. Voluntary disclosure to the Commission might be treated as an interrupting action, restarting the limitation period and extending the Commission's time to impose penalties. Legal counsel should analyze the limitation status before deciding whether voluntary disclosure is strategically advisable or whether allowing the limitation period to expire provides better protection.
From a practical compliance perspective, the limitation period emphasizes the importance of maintaining historical records of compliance activities. If the Commission investigates potential violations from several years ago, platforms must be able to demonstrate either that no violation occurred or that the Commission's limitation period has expired. Record retention policies should ensure that evidence of compliance, Commission communications, and relevant timelines are maintained for at least ten years (the absolute maximum limitation period) to enable effective defense against penalty actions for historical conduct.
Compliance teams should integrate limitation period analysis into their risk assessment processes. When conducting compliance audits, teams should: (1) Identify any historical potential violations; (2) Determine the limitation status for each potential violation; (3) Assess whether correction of historical violations is necessary or whether limitation provides protection; (4) Evaluate whether any Commission actions have interrupted limitation periods; (5) Document the analysis for use in potential future enforcement proceedings. This systematic approach ensures that limitation period defenses are properly preserved and utilized when appropriate.
Legal professionals should note that the limitation period for imposition of penalties is distinct from substantive compliance obligations. Even if penalties can no longer be imposed for historical violations, platforms remain obligated to comply with DSA requirements on an ongoing basis. A historical risk assessment violation from seven years ago may be time-barred for penalties, but the platform's current obligation to conduct risk assessments under Article 34 continues. Limitation periods provide temporal protection from penalties but do not eliminate ongoing substantive obligations or prevent Commission orders requiring current compliance.