Chapter 4|Delegated and Implementing Acts|📖 4 min read
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Articles 24, 33, 37, 40 and 43 shall be conferred on the Commission for a period of five years from 16 November 2022. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
3. The delegation of power referred to in Articles 24, 33, 37, 40 and 43 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Articles 24, 33, 37, 40 and 43 shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.
Understanding This Article
Article 87 establishes the framework governing the Commission's authority to adopt delegated acts under five key DSA provisions: Article 24 (prohibitions on dark patterns and interface manipulation), Article 33 (VLOP/VLOSE designation criteria), Article 37 (independent audit protocols and methodologies), Article 40 (researcher data access technical specifications), and Article 43 (transparency reporting templates and requirements). Delegated acts fill critical regulatory gaps by specifying technical details, operational procedures, and evolving requirements that primary legislation cannot comprehensively address due to technological dynamism and implementation complexity. The five-year renewable delegation with Parliamentary and Council oversight ensures Commission has sufficient time to develop sophisticated technical measures while facing periodic democratic accountability, balances technical expertise (Commission's regulatory capacity and platform technology understanding) with democratic legitimacy (elected legislators retain ultimate control), provides flexibility to adapt to technological evolution through delegated acts rather than cumbersome Regulation amendment processes, and creates regular evaluation checkpoints assessing whether delegation is being exercised appropriately or requires modification or revocation. Consultation requirements ensure Member State expertise informs delegated act development. Three-month objection period enables legislative review before entry into force, preventing Commission overreach while maintaining regulatory agility. Framework reflects broader EU institutional balance between Commission's executive regulatory function and Parliament/Council's legislative democratic oversight.
Key Points
Delegation conferred for 5 years from November 16, 2022 (expires November 2027)
Applies to delegated acts under Articles 24, 33, 37, 40, and 43
Tacitly extended for identical 5-year periods unless Parliament or Council opposes extension
Commission must draw up delegation report 9 months before end of each 5-year period
Parliament or Council may revoke delegation at any time
Revocation takes effect day following Official Journal publication or specified later date
Revocation does not affect validity of delegated acts already in force
Commission must consult Member State experts before adopting delegated acts
Expert consultation follows principles in Interinstitutional Agreement on Better Law-Making (April 13, 2016)
Commission must simultaneously notify Parliament and Council upon adopting delegated acts
Delegated acts enter into force only if no objection within 3 months of notification
Objection period extendable by additional 3 months at Parliament/Council initiative
Parliament and Council may inform Commission they will not object before period expiry (early approval)
Delegation framework balances Commission technical expertise with legislative democratic control
Enables flexible adaptation to technological evolution without full legislative amendment process
Periodic renewal creates accountability checkpoints for assessing delegation exercise
Practical Application
Article 40 Delegated Act Development and Adoption: Commission prepares delegated act specifying Article 40 researcher data access technical details including eligible researcher qualification criteria, application procedures and documentation requirements, data access scope and formats, confidentiality protections and security measures, publication requirements for research findings. Commission consultation process involves: Member State expert meetings with national regulatory authorities' designated representatives discussing proposed delegated act provisions, receiving feedback on practical implementation challenges, incorporating suggestions improving researcher access workability while protecting platform confidentiality. Commission adopts delegated act November 2023 after expert consultation. Simultaneous notification to European Parliament Committee on Internal Market and Consumer Protection (IMCO) and Council Working Party on Telecommunications. Three-month objection period runs November 2023-February 2024. Parliament examines delegated act through IMCO committee review, considers it balanced and technically appropriate, does not object. Council's Working Party reviews, identifies minor technical concern about researcher confidentiality provisions, Commission provides clarifying explanation, Council satisfied and does not object. February 2024 delegated act enters into force establishing operational Article 40 framework. Researchers can now apply for VLOP/VLOSE data access under standardized Commission-defined procedures, platforms understand specific compliance obligations, regulators can enforce consistent requirements across EU. Delegation expires November 2027. Commission prepares renewal report February 2027 (9 months before expiration) documenting how Article 40 delegated act functioned, researcher access statistics, platform compliance, any needed modifications. Parliament and Council review report, conclude delegation exercised appropriately, do not oppose extension. Delegation tacitly extended November 2027 for additional 5 years. Alternative scenario: Parliament concerned Commission's Article 24 dark pattern prohibitions delegated act excessively restricts legitimate interface design flexibility. Parliament votes to revoke Article 24 delegation March 2025. Revocation decision published Official Journal, takes effect following day. Ends Commission's Article 24 delegated act authority but does not invalidate already-adopted dark pattern prohibitions delegated act (remains in force). Future Article 24 modifications require legislative amendment process rather than delegated acts.