Chapter 4|Supervision, Investigation, Enforcement and Monitoring of VLOPs and VLOSEs|📖 12 min read
1. Before adopting a decision pursuant to Article 73(1), Article 74 or 76, the Commission shall give the provider of the very large online platform or of the very large online search engine concerned the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment.
2. The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission's file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission, the Board, Digital Service Coordinators, other competent authorities or other public authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission, the Board, Digital Service Coordinators, other competent authorities or other public authorities of the Member States. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement of the provisions of this Regulation.
3. A provider of a very large online platform or of a very large online search engine may submit its observations on the preliminary findings of the Commission within a reasonable period set by the Commission in its preliminary findings, which may not be less than 14 days.
4. Information collected pursuant to Articles 67, 68 and 69 shall be used only for the purpose of this Regulation.
Understanding This Article
Article 79 establishes fundamental procedural rights for platforms facing Commission enforcement actions under the DSA, implementing core principles from the EU Charter of Fundamental Rights, particularly Article 41 (right to good administration) and Article 48 (presumption of innocence and rights of defense). These procedural guarantees ensure that before the Commission adopts decisions imposing serious consequences - including non-compliance findings, fines up to 6% of global turnover, or periodic penalty payments - platforms have meaningful opportunities to understand the allegations against them, access relevant evidence, and present comprehensive defenses.
The right to be heard, established in Article 79(1), requires the Commission to provide platforms an opportunity to be heard on the Commission's preliminary findings before adopting final decisions under Articles 70(1) (interim measures), 71(1) (binding commitments), 73 (non-compliance), 74 (fines), 75 (enhanced supervision), and 76 (periodic penalty payments). The Commission must specify the preliminary findings - detailing what violations the Commission believes occurred and the evidence supporting those findings - and any measures the Commission may intend to take, including potential penalty amounts. Platforms must be given a reasonable period to respond, which cannot be less than 14 days, though the Commission typically provides longer periods for complex matters.
Article 79(2) enshrines the rights of defense, requiring that "the rights of defence of the parties concerned shall be fully respected in the proceedings." This encompasses multiple components: the right to be informed of allegations with sufficient specificity to prepare a defense; the right to access relevant evidence; the right to present counter-evidence and arguments; the right to legal representation; and the right to have the Commission base its final decision only on matters the platform has had opportunity to address. The Commission cannot rely on objections or evidence in its final decision without first allowing the platform to comment on them.
The right of access to the file under Article 79(3) enables platforms to access the Commission's file, subject to negotiated disclosure terms and legitimate business secrecy protection. This access is crucial because the Commission's investigatory powers under Articles 67-69 may have gathered extensive documentation, witness statements, expert reports, and other evidence. Platforms cannot effectively exercise rights of defense without understanding what evidence the Commission has collected. Access to the file typically occurs through secure data rooms where platforms and their counsel can review documents, take notes, and prepare responses, subject to confidentiality commitments.
However, Article 79(3) establishes important limits on file access. The right of access does not extend to confidential information - typically information classified as confidential under competition law principles, such as sensitive business information from third parties. The right also does not extend to internal documents of the Commission, the European Board for Digital Services, Digital Services Coordinators, or other competent authorities. These exclusions protect the Commission's deliberative process and third-party confidential information while still providing platforms access to evidence that the Commission will rely on in its final decision.
The procedural rights under Article 79 draw heavily from established EU competition law procedures, where similar rights have been developed through decades of Commission practice and CJEU jurisprudence. Platforms and their counsel can look to competition law precedents for guidance on how procedural rights should be implemented in DSA proceedings. For example, the format of Statements of Objections in competition cases provides a model for how the Commission should articulate preliminary findings in DSA proceedings, ensuring sufficient specificity for effective defense preparation.
The timing of when these procedural rights attach is significant. Rights of defense must be respected throughout proceedings, beginning when the Commission first considers allegations that may lead to formal decisions. However, the formal right to be heard under Article 79(1) attaches before the Commission adopts specific decisions listed in that provision. Commission investigatory actions under Articles 67-69 (information requests, inspections) may not trigger formal Article 79 rights, though platforms still have rights to challenge investigatory decisions and procedural irregularities. The most comprehensive procedural protections apply before final substantive decisions imposing penalties or finding non-compliance.
Article 79's procedural guarantees serve multiple functions beyond protecting individual platform rights. They enhance the quality and accuracy of Commission decisions by ensuring the Commission must consider platform arguments and evidence before reaching conclusions. They promote transparency and accountability in Commission enforcement. They reduce the likelihood of erroneous decisions that would require correction through lengthy judicial proceedings. And they reinforce the legitimacy of DSA enforcement by ensuring it comports with fundamental EU values regarding fair procedures and rights of defense.
For legal professionals, Article 79 creates both opportunities and obligations. Platforms must exercise these rights effectively to present comprehensive defenses. Failure to respond to Commission preliminary findings within the specified timeframe, failure to request access to the file, or failure to present available evidence and arguments may result in the Commission adopting adverse decisions without full consideration of the platform's position. Conversely, platforms that exercise Article 79 rights fully, providing detailed factual and legal arguments with supporting evidence, may convince the Commission to modify or abandon proposed adverse decisions.
The relationship between Article 79 procedural rights and subsequent judicial review is important. Platforms that prevail on procedural grounds before the Commission may avoid adverse decisions entirely. If the Commission adopts adverse decisions despite platform defenses, judicial review before the CJEU allows platforms to challenge both substantive merits and procedural regularity. Violations of Article 79 rights - such as failing to provide adequate opportunity to be heard, basing decisions on evidence the platform did not have access to, or insufficient specification of preliminary findings - can form grounds for annulment of Commission decisions, even if substantive violations occurred.
Key Points
Implements EU Charter rights to good administration and defense, requiring Commission to provide platforms opportunity to be heard before adverse decisions
Commission must specify preliminary findings and potential measures, giving platforms at least 14 days (typically more for complex matters) to respond before adopting final decisions
Rights of defense must be fully respected; Commission can only base decisions on objections platforms have been able to comment on, ensuring no surprise evidence
Platforms entitled to access Commission's file under negotiated disclosure terms, enabling review of evidence the Commission has gathered during investigation
File access excludes confidential information and internal Commission/authority documents, protecting deliberative process and third-party business secrets
Drawn from EU competition law procedures with decades of precedent providing guidance on implementation and scope of procedural protections
Violations of Article 79 rights can form grounds for CJEU annulment of Commission decisions, even if substantive violations occurred
Effective exercise requires comprehensive response teams, strategic analysis of preliminary findings, expert evidence, and proactive engagement with Commission
Practical Application
When platforms receive Commission communications indicating preliminary findings or potential enforcement actions, immediate mobilization of internal and external resources is essential. Platforms should convene response teams including: (1) Legal counsel with DSA and EU administrative law expertise; (2) Compliance officers who understand the platform's DSA compliance program; (3) Technical staff who can explain platform systems and processes; (4) Business personnel who can address operational and strategic considerations; (5) External experts who can provide technical, economic, or legal opinions supporting the platform's position. The right to be heard is only meaningful if platforms allocate sufficient time and resources to prepare comprehensive responses.
Upon receiving Commission preliminary findings, platforms should conduct immediate comprehensive assessment: (1) Analyze each alleged violation specifically - what conduct does the Commission claim violated which DSA provision; (2) Review the evidence cited by the Commission - what documents, data, or information supports the findings; (3) Identify factual inaccuracies - where does the Commission misunderstand or mischaracterize platform conduct; (4) Develop legal arguments - why the platform's conduct does not violate the DSA even if factual characterizations are accurate; (5) Gather counter-evidence - what documentation, technical analysis, or expert opinions support the platform's position; (6) Assess procedural irregularities - did the Commission comply with procedural requirements in its investigation and preliminary findings.
The 14-day minimum response period under Article 79(1) is often insufficient for comprehensive responses to complex enforcement matters. Platforms should immediately request extensions if needed, providing specific justifications: the volume and complexity of preliminary findings, the need to gather extensive documentation or technical analysis, the involvement of multiple business units requiring coordination, or the need for translation of documents. The Commission typically grants reasonable extension requests, and platforms should not hesitate to request additional time rather than providing incomplete or rushed responses that fail to adequately address Commission concerns.
Exercising the right of access to the file requires proactive engagement with the Commission. Platforms should formally request file access as early as possible in enforcement proceedings, specifying what categories of documents are needed. The Commission typically proposes disclosure terms including confidentiality commitments, restrictions on document use, and secure review arrangements. Platforms should negotiate these terms to ensure meaningful access while addressing legitimate Commission confidentiality concerns. Once access is granted, platforms should systematically review the file, identifying: (1) Evidence the Commission is likely to rely on; (2) Documents or information contradicting Commission preliminary findings; (3) Evidence of procedural irregularities; (4) Third-party information requiring analysis or rebuttal.
Preparing written responses to Commission preliminary findings requires strategic judgment about what arguments to raise and how to present them. Effective responses typically include: (1) Executive summary providing overview of key arguments; (2) Factual section correcting Commission misunderstandings of platform operations; (3) Legal section explaining why conduct did not violate DSA obligations; (4) Evidence section citing specific documents, technical analysis, expert opinions, and other support; (5) Procedural section identifying any irregularities in the Commission's investigation or preliminary findings; (6) Proportionality section explaining why proposed measures or penalties would be excessive; (7) Conclusion requesting specific Commission action (withdrawing findings, reducing proposed penalties, etc.). Responses should be comprehensive but focused, addressing Commission concerns directly rather than raising tangential matters.
Platforms may also request oral hearings to present arguments directly to Commission decision-makers. While not explicitly required by Article 79, oral hearings are common in significant enforcement matters and provide opportunities for direct dialogue with the Commission. During oral hearings, platforms can: (1) Emphasize key arguments from written submissions; (2) Respond to Commission questions and concerns; (3) Present expert testimony or technical demonstrations; (4) Gauge Commission reactions to different arguments; (5) Explore potential resolutions such as commitments under Article 71. Preparation for oral hearings requires careful coordination among legal, technical, and business personnel to ensure consistent and effective messaging.
Third-party evidence and expert opinions can be crucial in exercising Article 79 rights effectively. Platforms should consider retaining: (1) Technical experts who can analyze platform systems and opine on compliance; (2) Economic experts who can assess market effects and proportionality of proposed penalties; (3) Legal experts with specialized DSA or EU law knowledge; (4) Industry witnesses who can provide context about standard practices; (5) Academic researchers who can offer objective analysis of technical or policy issues. Expert opinions must be credible and well-supported to carry weight with the Commission; poorly reasoned or obviously biased expert submissions may actually undermine the platform's credibility.
Managing confidential information during Article 79 proceedings requires careful attention. When platforms provide evidence to the Commission, they should clearly designate confidential business information that should not be disclosed to third parties or the public. The Commission typically respects confidentiality designations if properly justified. Conversely, when accessing the Commission's file, platforms receive third-party confidential information subject to confidentiality commitments. Platforms must establish internal procedures ensuring that such information is used only for defense purposes and not for business purposes, and that personnel with access are limited to those with legitimate need to know.
The relationship between Article 79 rights and potential settlement through Article 71 commitments deserves strategic consideration. During the period after receiving preliminary findings, platforms should assess whether offering commitments might be preferable to contesting the Commission's findings. Sometimes the most effective exercise of rights of defense includes not just arguing against Commission findings, but proposing concrete solutions through binding commitments. Platforms might submit responses that both (1) contest the Commission's preliminary findings and (2) in the alternative, offer commitments to address Commission concerns if the Commission maintains its findings. This dual approach preserves all arguments while demonstrating willingness to achieve constructive resolution.
Documentation of Article 79 compliance is important for potential judicial review. If the Commission adopts adverse decisions despite platform defenses, platforms may challenge those decisions before the CJEU on grounds including procedural irregularities. To preserve such challenges, platforms should maintain: (1) Records of all Commission communications regarding preliminary findings; (2) Copies of platform responses and supporting materials; (3) Correspondence regarding file access and disclosure terms; (4) Evidence of requests for extensions or additional information; (5) Notes from oral hearings or Commission meetings; (6) Documentation of any procedural irregularities. This record enables effective presentation of procedural violations to the CJEU if judicial review becomes necessary.
For platforms facing multiple enforcement proceedings or ongoing Commission oversight, establishing standardized procedures for Article 79 compliance promotes efficiency and consistency. These procedures should specify: (1) Internal notification protocols when Commission enforcement actions are received; (2) Roles and responsibilities for response coordination; (3) External counsel engagement protocols; (4) Document collection and review processes; (5) Internal approval procedures for responses; (6) Confidentiality and privilege protection measures; (7) Budget and resource allocation for major enforcement responses. While each enforcement matter is unique, standardized procedures ensure that critical procedural rights are exercised consistently and effectively across all Commission proceedings.