Understanding This Article

Article 82 addresses three distinct but interconnected challenges in DSA enforcement: (1) providing an ultimate enforcement mechanism when all other regulatory tools have failed to stop persistent serious violations; (2) enabling Commission input into national court proceedings to promote consistent DSA interpretation and application across Member States; and (3) preventing jurisdictional conflicts between Commission administrative enforcement and national judicial proceedings that could fragment DSA implementation. These provisions collectively ensure effective enforcement while respecting Member State judicial sovereignty and maintaining coherent EU-wide regulatory standards.

Paragraph 1: Access Restriction Requests as Last Resort Enforcement—This provision creates the DSA's most extreme enforcement mechanism, permitting Commission requests for service access restrictions only when multiple stringent conditions are satisfied. The "last resort" characterization is not merely rhetorical but imposes substantive legal requirements that must be documented and satisfied before activation. Exhaustion of All Other Enforcement Possibilities: The Commission must first attempt and exhaust all other regulatory tools available under the DSA. This includes: (a) Article 67 information requests compelling platforms to provide compliance documentation; (b) Article 68 interviews with platform personnel and affected stakeholders; (c) Article 69 on-site inspections with power to access premises and examine documents; (d) Article 70 interim measures requiring immediate action to prevent imminent serious harm; (e) Article 71 commitments from platforms to modify conduct; (f) Article 73 non-compliance decisions formally finding violations; (g) Article 74 fines up to 6% of global annual turnover; (h) Article 76 periodic penalty payments up to 5% of average daily turnover to compel compliance; (i) Article 72 monitoring actions using appointed auditors and experts. Only after these comprehensive enforcement tools have been deployed and proven insufficient may the Commission consider requesting access restrictions. The Commission must document specifically why each available enforcement mechanism failed to achieve compliance and explain why access restrictions are necessary where other tools proved inadequate.

Persistent Infringement Requirement: The violation must be ongoing despite enforcement efforts. A single completed violation, even if serious, does not trigger Article 82(1). The platform must be engaging in continued non-compliance that persists through multiple enforcement actions. This typically means violations continuing for many months across repeated Commission interventions. Serious Harm Requirement: The persistent infringement must cause "serious harm" that cannot be sufficiently addressed by other means. Serious harm encompasses threats to: public safety and security (terrorist content, child sexual abuse material, illegal weapons/drugs trafficking); fundamental rights (systemic discrimination, mass surveillance, violation of human dignity); democratic processes (coordinated disinformation campaigns affecting elections, manipulation of public discourse); public health (dangerous medical misinformation during health crises). Minor compliance deficiencies or technical violations not causing substantial harm cannot justify access restrictions regardless of persistence. The harm must be serious in both nature and scale, affecting large numbers of users or creating systemic risks to protected interests. Insufficiency of Other Means: Even if serious harm exists, access restrictions may only be requested if the harm "cannot be sufficiently addressed by other means." This requires showing that continued application of fines, periodic penalties, and monitoring would be inadequate to prevent the ongoing harm within a reasonable timeframe. For example, if a platform continues violating Article 35 risk mitigation requirements enabling terrorist recruitment despite €2 billion in cumulative fines and €50 million daily periodic penalties, and the violations create imminent threats to public safety that cannot await further administrative proceedings, other means may be insufficient.

Digital Services Coordinator Assessment and Decision: Critically, the Commission cannot directly order access restrictions. It may only request that the Digital Services Coordinator of establishment (the DSC of the Member State where the VLOP/VLOSE has its main establishment) assess whether to pursue such measures. The DSC conducts an independent assessment of necessity, effectiveness, and proportionality: (a) Necessity—Are access restrictions actually necessary given the nature and persistence of violations, or could enhanced monitoring, increased penalties, or other measures achieve compliance? (b) Effectiveness—Would access restrictions effectively address the serious harm, or might the platform evade restrictions through technical means, or might users simply migrate to equally problematic alternative platforms? (c) Proportionality—Do the severe consequences of access restrictions (economic impact, user disruption, potential collateral harm to legitimate speech and commerce) bear a reasonable relationship to the harm being addressed, and are restrictions limited to the minimum scope necessary (e.g., restricting only specific harmful service features rather than entire platform access)? The DSC may conclude that even though Commission exhausted other remedies, access restrictions are not necessary, effective, or proportionate, and decline the Commission's request. This preserves Member State enforcement discretion and prevents Commission overreach.

Article 51(3) Implementation Mechanism: If the DSC determines access restrictions are warranted, Article 51(3) provides the implementation pathway. The DSC requests competent judicial authorities under national law to order providers to restrict access to their online interface or, where this is not possible, requests competent authorities to take enforcement action to achieve restriction objectives. This "request competent judicial authorities" language reflects the requirement in many Member States that service access restrictions (which may implicate fundamental rights to freedom of expression and information) must be ordered by independent courts rather than administrative agencies. The judicial authority conducts its own proportionality review under national constitutional law and the Charter of Fundamental Rights before issuing any restriction order. This creates multi-layered safeguards: Commission request → DSC assessment → Judicial authorization, ensuring that access restrictions (the "nuclear option" of DSA enforcement) are subject to rigorous oversight at each level.

Procedural Safeguards—14 Working Day Observation Period: Before requesting access restrictions, the Commission must invite "parties concerned and interested third parties" to submit observations within at least 14 working days. Parties concerned include the platform facing potential restrictions and any entities directly affected by the persistent violations. Interested third parties may include: civil society organizations representing user interests, competitors potentially affected by the platform's market exit, industry associations, academic researchers studying platform governance, and parties who may be harmed by access restrictions (e.g., small businesses relying on platform for commerce, journalists using platform for reporting). This observation period enables stakeholder input on whether restrictions are necessary, proportionate, and likely to be effective, and may surface alternative enforcement approaches the Commission had not considered. The Commission must consider these observations before making its request, and if the Commission proceeds despite substantive objections, it must explain why alternative approaches suggested by stakeholders are inadequate. This consultation requirement provides transparency and enables affected parties to challenge disproportionate restriction requests.

Scope and Duration of Restrictions: Restrictions may apply to "the service, or a part thereof" and continue "until the infringement has been brought to an end." This enables tailored restrictions targeting specific harmful features rather than blanket platform blocking. For example, if a VLOP's recommender system systematically amplifies illegal content in violation of Article 35, restrictions might target only the recommender system (requiring non-algorithmic chronological content display) rather than blocking all platform access. Similarly, restrictions could apply only to specific Member States most affected by the harm rather than EU-wide blocking. The temporal limitation "until the infringement has been brought to an end" means restrictions must be lifted once the platform achieves compliance, preventing permanent market exclusion. This requires ongoing monitoring: if a platform subject to access restrictions implements effective compliance systems and demonstrates sustained compliance for a reasonable period (e.g., 6 months), the DSC must reassess whether restrictions remain necessary and lift them if the infringement has ended.

Paragraph 2: Commission Amicus Curiae Participation in National Courts—This provision enables the Commission to participate in national court proceedings "where the coherent application of this Regulation so requires." This addresses the challenge that while the Commission has exclusive enforcement authority over VLOPs/VLOSEs regarding certain DSA provisions, national courts hear cases involving DSA interpretation and application (user lawsuits challenging content moderation decisions, commercial disputes invoking DSA liability exemptions, regulatory challenges to national DSC enforcement actions). Without Commission input, national courts might adopt divergent DSA interpretations creating fragmented implementation across 27 Member States. Coherent Application Requirement: The Commission may submit observations only where "coherent application" of the DSA requires Commission input. This encompasses: (a) cases raising novel DSA interpretation questions that could create binding or persuasive precedent affecting enforcement in multiple Member States; (b) cases where the national court is considering an interpretation that conflicts with the Commission's established enforcement practice or guidance; (c) cases involving DSA provisions subject to Commission implementing acts or delegated acts where the Commission can explain the technical regulatory framework; (d) cases addressing the relationship between DSA requirements and other EU legislation (GDPR, Platform-to-Business Regulation, Copyright Directive) where Commission can explain how regulatory frameworks interact. Not every case touching on the DSA warrants Commission participation—only those where Commission input would meaningfully contribute to consistent cross-border interpretation.

Written and Oral Observations: The Commission may submit both written briefs and, "with the permission of the court," oral argument. Written observations function similarly to amicus curiae (friend of the court) briefs in common law systems, providing the Commission's views on proper DSA interpretation, relevant regulatory context, and practical enforcement implications of alternative interpretations. Oral observations require court permission, respecting judicial control over courtroom proceedings. Courts typically grant such permission when Commission input would be valuable, but may deny oral argument if written submissions adequately present Commission views or if oral argument would unduly delay proceedings. Document Requests: To prepare informed observations, the Commission may request courts transmit case documents "necessary for the assessment of the case." This enables the Commission to review factual records, party submissions, and legal arguments before filing observations, ensuring Commission input responds to actual issues in dispute rather than hypothetical concerns. Courts assess whether requested documents are genuinely necessary and whether confidentiality or privilege protections require limitations. The Commission is bound by the same confidentiality obligations regarding court documents as other case participants.

Non-Binding Nature of Commission Observations: Critically, Commission observations are persuasive but not binding. National courts remain independent judicial authorities that must apply DSA provisions according to their own legal analysis. Courts consider Commission views with appropriate weight (the Commission drafted implementing regulations, conducts enforcement creating practical expertise, and has institutional responsibility for consistent DSA application), but may reject Commission interpretations if persuaded by contrary legal arguments. This preserves judicial independence while promoting regulatory coherence. The dynamic resembles that in GDPR enforcement where European Data Protection Board opinions carry persuasive weight in national court proceedings without binding courts.

Paragraph 3: Prevention of Jurisdictional Conflicts—This provision addresses the challenge of parallel Commission administrative enforcement and national court judicial proceedings potentially reaching inconsistent conclusions about whether DSA violations occurred. Two distinct rules apply: Existing Commission Decisions (Mandatory Consistency): When a national court rules on "a matter which is already the subject matter of a Commission decision," the court "shall not take any decision which runs counter to that Commission decision." This creates a binding constraint: if the Commission has issued an Article 73 decision finding that Platform X violated Article 35 by failing to implement adequate risk mitigation measures, and a user subsequently sues Platform X in national court alleging the same Article 35 violation, the national court cannot find that Platform X actually complied with Article 35. The Commission decision establishes a binding finding that national courts must respect. However, the national court retains authority to: (a) assess damages resulting from the violation; (b) order national-law remedies; (c) interpret how the violation affects contractual relationships or tort liability under national law; (d) address issues not covered by the Commission decision. The constraint operates only on the core determination of whether a DSA violation occurred, not on all matters related to the case.

Contemplated Commission Decisions (Softer Avoidance Standard): National courts "should also avoid" decisions conflicting with decisions "contemplated by the Commission in proceedings it has initiated." This is a softer standard ("should avoid" rather than "shall not") reflecting uncertainty about what the Commission will ultimately decide. If the Commission has initiated Article 66 proceedings investigating whether Platform Y violated Article 40 researcher access requirements, but has not yet issued findings, a national court hearing a researcher's lawsuit alleging Article 40 violations faces potential conflict risk. The court is encouraged to avoid reaching conclusions that might contradict the Commission's eventual decision, but is not absolutely prohibited from proceeding. Stay of Proceedings: To avoid such conflicts, courts "may assess whether it is necessary to stay its proceedings." This grants discretionary authority to pause national litigation pending Commission decision, preventing inconsistent findings while respecting the Commission's primary enforcement role regarding VLOPs/VLOSEs. Factors courts consider when assessing stay necessity include: (a) how advanced Commission proceedings are (imminent decision weighs toward stay, early-stage investigation weighs against); (b) whether parties in national litigation would suffer undue prejudice from delay; (c) degree of overlap between issues in Commission proceedings and national case; (d) whether national court could decide some issues while staying others pending Commission action. Courts have discretion to deny stays when Commission proceedings would cause excessive delay or when national case raises distinct issues beyond Commission investigation scope.

Preservation of TFEU Article 267 Preliminary Reference Rights: The paragraph concludes "without prejudice to the rights and obligations pursuant to Article 267 TFEU," preserving national courts' authority and obligation to refer DSA interpretation questions to the Court of Justice of the European Union. If a national court is uncertain about the proper interpretation of DSA provisions (e.g., what "adequate risk mitigation" under Article 35 requires in specific contexts), the court may or must (for courts of last instance) refer the question to the CJEU for authoritative interpretation via preliminary reference procedure. This ensures uniform DSA interpretation across Member States through binding CJEU guidance while enabling national courts to resolve cases with confidence that their legal interpretations align with EU law. The interplay between Article 82(3) and TFEU Article 267 creates a coherent framework: courts defer to Commission factual findings about violations, seek CJEU guidance on legal interpretation questions, and apply both to resolve national cases.