Inquiry into the validity of the Digital Services Act and the role of the representative associations under that regulation

Abstract

The Digital Services Act (DSA) tackles challenges arising from the evolution of online intermediary services and inevitably brings forth a multitude of legal issues regarding its operation. While the first rulings of the EU courts, delivered in incidental proceedings, have to be read in the specific context in which they were rendered, these decisions could serve as a noteworthy reference point for future discussions on the broader understanding of the DSA. An intriguing aspect of these rulings is their potential to illustrate two prospective approaches that may emerge in future case law concerning the DSA at both EU and national levels.

1 Introduction

The Digital Services Act (DSA)¹ is applied, as a matter of principle, since 17 February 2024, although some of its provisions became applicable on 16 November 2022 (Article 93).

The media has lauded the DSA as a “ground-breaking”² piece of legislation dealing with online services and a true “new super weapon”³ of the European Union. While those portrayals might be easily accused of sensationalism, a similar language has been used in official documentation of the EU institutions, where it has been described as the landmark new set of EU rules.⁴

In this setting, it might seem unexpected to devote, already at this stage, an entire paper to the case law of the CJEU pertaining to not only a novel but also revolutionary legal framework. Unsurprisingly, thus far no preliminary ruling has elucidated the interpretation of the DSA and only some rare reference to the Regulation can be found in the Opinions of Advocates General.⁵

Nonetheless, the DSA has already spawned some decisions of the EU courts within incidental procedures. Although the findings contained therein have to be read in the specific context in which they are made, these findings might turn out to be fundamental for the future understating of the Regulation and its practical implications. Hence, they are worth discussing in more detail.

Such is the ambition underpinning the present paper, which elaborates upon two aspects of the DSA, on which some light has been recently cast by the CJEU. To that end, a brief outline of the Regulation is presented in the second section of this paper. It is followed by a general inquiry on the validity of the DSA benchmarked against the requirements of the protection of fundamental rights and freedoms enshrined in the Charter of Fundamental Rights of the European Union (Charter).⁶ Subsequently, the paper touches upon the issue of the representative bodies and their role under the framework of the DSA. The text ends with a short summary and a conclusion.

2 Brief outline of the DSA

The foundational concepts and specific provisions of the DSA have already been outlined in the existing literature.⁷ Therefore, it is sufficient to offer a concise recap of its contents that are of relevance for the discussion that follows.

The DSA designates its scope by relying on the notion of “intermediary services”,⁸ which encompasses information society services consisting of “mere conduit”, “caching” or “hosting”.⁹ The focus on the service (as opposed to its provider) is coherent with the personal scope of application the DSA, since it applies to providers established in the EU and in non-EU States, provided that their service is “offered” in the Union.¹⁰

Viewed in isolation, that provision might suggest that the DSA aspires to have almost universal (global) scope of application since a simple accessibility of an intermediary service in the Union triggers its application. That ambition is curtailed, in a two-fold manner, through Article 3, titled “Definitions”. First, Article 3(d) states that a service is offered in the EU if the provider has a “substantial connection to the Union”. Second, Article 3(e) clarifies that the “substantial connection” results from the establishment of the provider in the EU or from specific factual circumstances, such as a significant number of recipients of the service in the Union or the targeting of activities towards the EU.¹¹ Nonetheless, it is sufficient to have it or to target the recipients in a single Member State for the DSA to apply.

The notion of “recipients” comprises both professional and non-professional users of the intermediary services,¹² although some of the provisions of the DSA specifically target the business-to-consumer relations, in the context of online marketplaces.¹³

The core of the DSA is based on a layered structure, and in the literature it was also compared to a “layer cake”¹⁴ or a “pyramid”:¹⁵ increasingly stringent requirements and obligations apply with regard to more complex services, starting from intermediary services in general (all intermediary services), through services involving the storage of information provided by users (hosting services) and online platforms¹⁶ to, if additional criteria relating to the size of service are met and where the Commission adopted a decision designating the service as such,¹⁷ very large online platforms. Furthermore, in line with the approach already taken under the P2B Regulation,¹⁸ “online search engines” (and, pursuant to the criteria already mentioned, very large online search engines) are also mentioned throughout the text of the DSA.¹⁹

These requirements and obligations seek to, as the DSA announces in Article 1(1), ensure safe, predictable and trusted online environment that facilitates innovation and “in which fundamental rights enshrined in the Charter are effectively protected”. In order to attain that goal, the DSA contains a set of rules on liability of providers of intermediary services,²⁰ due diligence obligations²¹ and on competent authorities and enforcement.²²

In the area of liability of providers of intermediary services, the DSA partially repealed the e-Commerce Directive²³ (Articles 12 to 15 on the liability of the providers of intermediary services), but it upheld those provisions in Articles 4 to 6 and 8 with some adjustments and developments. The first three provisions (Articles 4 to 6) contain the notorious conditional exemptions from liability (safe harbours): a provider shall not be held liable for the information provided by the recipient, provided that specific conditions are met. Furthermore, in line with the e-Commerce Directive (cf. Article 15 of that Directive), in Article 8, the DSA contains a provision on the interdiction of general monitoring obligation.

By contrast, the rules concerning the due diligence obligations and the rules on enforcement have no predecessors in other pieces of EU legislation. Since this paper does not intend to provide a comprehensive overview of the Regulation, in its following sections only selected rules falling within these two categories will be discussed in more detail.

3 Fundamental rights and the validity of the DSA

3.1 Fundamental rights and validity of EU secondary law

Despite its innovative character and paramount importance for the digital services and their users, the DSA is still an act of EU secondary law. It is subject to the general principles of interpretation and application of Union law. From that perspective, the DSA seems by no means unique. However, the content of the Regulation and its broad territorial scope of application warrants some additional scrutiny in that regard.

EU secondary law needs to be conform with primary law. It can be subject to judicial review within the preliminary procedure (Article 267 TFEU) and in direct actions before the EU courts (Articles 263 and 277 TFEU). The question of validity extends beyond the mere existence of a legal basis for EU legislative action; it also encompasses the conformity of the substance of secondary law with primary law and, in particular, with the provisions of the Charter.

In particular, a limitation of a fundamental right or freedom ensuing from the operation of EU secondary law has to fulfil the requirements resulting from Article 52(1). Such a limitation must be provided for by law and respect the essence of the right or freedom in question. Moreover, subject to the principle of proportionality, the limitation may be made only if it is necessary and genuinely meets objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. In the extension of that logic, where several fundamental rights and/or freedoms are at issue, the principle of proportionality demands that the requirements of their protection are reconciled and a fair balance between them struck.²⁴

One way of achieving the conformity of EU secondary legislation with primary law consists of proper interpretation of the piece of legislation in question. Indeed, as the CJEU repeatedly held, EU secondary law must be interpreted, “as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole”.²⁵

Against that background, an interpretation consistent with the requirements of the protection of fundamental rights and freedoms must actually be possible (“as far as possible”) under the piece of EU legislation itself. Therefore, and since the EU institutions are obliged to observe the fundamental rights and freedoms also in the legislative process (arg. ex Article 51 of the Charter), the EU legislature has to account for the necessity of respecting the requirement of protection of fundamental rights and of ensuring the right balance between the potentially conflicting rights and interests.

In a similar manner, when EU Member States transpose and apply an EU Directive, they are effectively “implementing Union law” and thus have an obligation to uphold the Charter (as per Article 51 of the Charter). With that in mind, since an EU Directive is binding “as to the result to be achieved” (Article 288, third paragraph, TFEU), in the transposition and in the application of its provisions, the Member States typically enjoy some level of discretion allowing them to ensure proper respect of fundamental rights.²⁶ Therefore, where a Directive allows the Member States discretion to define transposition measures adapted to the various situations possible, they must, when adopting and implementing those measures, ensure not to enter into conflict with the fundamental rights protected by the EU legal order or with the other general principles recognised by EU law.²⁷

As a result, in the field falling within the ambit of an EU Directive, the mechanisms balancing the potentially concurring rights and interests are contained, first, in the Directive itself, and second, in its national transposition.²⁸ In other terms, in essence and leaving aside the Directives of maximum harmonisation, the duty to observe fundamental rights and ensure their right balance is bifurcated between the EU legislature and the Member States. Consequently, a Directive is generally less likely to run into contradictions with fundamental rights and freedoms enshrined in the Charter since the final balancing of potential conflict is further dealt with, or at least fine-tuned, under the provisions of national law. In fact, even Article 51 of the Charter itself provides that the EU institutions observe the fundamental rights and freedoms “with due regard for the principle of subsidiarity”.

3.2 Choice of legislative instrument

Originally, the EU legislature relied on the Directives in order to ensure the harmonisation of the legal framework for online services within the territory of the Union. The E-Commerce Directive²⁹ and subsequent sectorial legislation on online content and its moderation have even been criticised for not providing a sufficiently harmonised regime leading to the fragmentation of the digital market in the EU.³⁰ In the same time and for the exact same reason, the EU legal framework dealing with specific aspects of the digital market has been rather immune to the criticism of not accounting for a right balance between concurring rights and interests.³¹

By contrast, the DSA is a regulation. As such, it is binding and directly applicable in the Member States (Article 288, second paragraph, TFEU). Hence, the above-discussed argument that the duty to ensure the proper balance between the concurring rights and interests is bifurcated between the EU institutions and EU Member States is less likely to succeed within the framework of the DSA.

It is true that the validity of some provisions of the DSA might still be shielded by the argument that the obligation to ensure the respect of fundamental rights and freedoms is shared between the EU legislature and the national lawmakers. For instance, some provisions of the DSA set only minimal requirements and conditions that are without prejudice to national law. Article 9 of the order to act against illegal content is an example of such a provision.³² Furthermore, a recital elucidating that provision even goes as far as to state that the conditions provided for in the DSA in relation to orders to act against illegal content might be adopted or even not apply (sic!) if they are incompatible with national civil and criminal procedural law.³³

However, more generally, due to the choice of legislative instrument (i.e. a regulation) and the degree of harmonisation pursued by the DSA,³⁴ the EU legislature was undoubtedly aware that it was primarily responsible for striking a fair between concurring rights and interests. Such an awareness of EU legislature is clearly reflected in the initial proposal of the Commission³⁵ as well as in numerous Recitals³⁶ and even the very first provision³⁷ of the Regulation. In the context of online content and its moderation, the obligation to observe fundamental rights requires finding a delicate equilibrium between the right to privacy and family life, the right to personal data protection of individuals featured in specific information, on one hand, and the fundamental freedom of expression of those sharing such a content, the freedom of EU citizens to access information, and – in particular from the perspective of the service providers – the freedom to conduct business, on the other hand.

Despite these efforts of the EU legislature, the provisions of the DSA might naturally still be put under scrutiny for not ensuring proper respect of fundamental rights and freedoms or failing to strike the right balance between them. This is not a merely theoretical possibility. Recently, a similar attempt was made within the interlocutory proceedings for interim measures.

3.3 Case T-376/23 R and C-639/23 P(R), Amazon Service Europe v Commission

An online marketplace was designed as a very large online platform by a decision of the Commission pursuant to Article 33(4) of the DSA. Subsequently, a request for annulment was brought before the General Court by the provider of that online marketplace,³⁸ which raised the plea of illegality of some of the provisions of the DSA, including Article 39.³⁹ In accordance with the layered structure of the DSA, under the latter provision, the providers of very large online platforms are obliged to make publicly available a repository containing the information referring to the advertisements presented on their online interfaces. Thus far, no definitive judgment on these contentions has been handed down.

Nonetheless, in the course of the same procedure, the provider lodged an application for interim measures and asked the General Court to suspend the operation of the said decision in so far as it imposed on the applicant the obligation to compile and make publicly available an advertisement repository under Article 39.

As a general rule, such an application has to state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for.⁴⁰ In the case reported here, the applicant raised the plea of illegality of Article 39 of the DSA in order to establish a prima facie case. The provider contended that the obligation to publish such a publicly accessible repository infringes, inter alia, Article 7 (respect of private and family life) and Article 16 (freedom to conduct a business) of the Charter.⁴¹

The President of the General Court granted the requested interim measure and partially suspended the operation of the decision.⁴² Concerning the plea establishing a prima facie case, the President of the General Court accepted the argumentation of the applicant concerning the seriousness of the allegation revolving around the validity of Article 39 and found that “[the] plea relied on by the applicant appears, prima facie, not to lack a serious basis and therefore calls for a detailed examination”.⁴³ Nonetheless, the analysis of the plea seems to deliberately avoid a direct discussion on fundamental rights.⁴⁴

In its order on the appeal brought by the Commission, the Vice-President of the Court of Justice set aside the order of the President of the General Court and examined himself the request for interim measures.⁴⁵ While ultimately the Vice-President of the Court of Justice did not grant the requested measure, he sensibly considered the fundamental rights facet of the allegation relating to the validity of Article 39 of the DSA. He found that such an assessment “involves taking into account various factors, such as the degree of contribution of the publication of all the information referred to in Article 39(2) [of the DSA] to the attainment of the objectives pursued by the EU legislature, the degree of seriousness of the limitation of the rights provided for in Articles 7 and 16 of the Charter or indeed the possible existence of alternative solutions that are less prejudicial to those rights”.⁴⁶

It does not require much imagination to extrapolate such a finding to a scenario in which the allegation takes it further and argues that another provision of the DSA does not meet the requirements stemming from the protection of other fundamental rights or does not balance fundamental rights adequately.

3.4 Margin of discretion enjoyed by the EU legislature and judicial review

Over the years the EU courts have accumulated a robust case law on the balancing of fundamental rights. In the context of dissemination and moderation of online content, it drew inspiration from the case law of the European Court of Human Rights (ECHR),⁴⁷ which developed a proper methodology for balancing the freedom of expression enshrined in Article 10 ECtHR, on the one hand, and other interests and values, on the other hand. Overall, much ink has been spilled about the case law of the CJEU and its interplay with the case law emanating from ECHR,⁴⁸ and it is not necessary to reiterate that debate. Nonetheless, from EU secondary law perspective and the inquiry on its validity, one element ought to be mentioned given the scope and contents of the DSA.

The intensity of judicial review is reduced if a piece of EU secondary regulation regulates a field, within which the EU institutions enjoy a wide margin of discretion. By contrast, where the EU legislature’s discretion is limited, the review of that discretion should be strict.

In its recent judgment, the Court of Justice explained more clearly that the extent of the EU legislature’s discretion depends on a number of factors, including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, and the nature and seriousness of the interference and the object pursued by the interference.⁴⁹

The CJEU seems to be drawing inspiration from the case law of the ECHR in order to determine whether, due to its nature, a particular right or freedom guaranteed by the Charter has the potential to curtail the margin of discretion enjoyed by the EU legislature.⁵⁰

In this setting, the contention here is that on the one hand, a likely interference of the piece of EU legislation with absolute and hence inviolable fundamental right will automatically trigger the strict judicial review.⁵¹ On the other hand, the freedom to conduct an economic activity (Article 16 of the Charter)⁵² and the right to property (Article 17 of the Charter)⁵³ do not seem to be likely candidates to prompt the more demanding judicial scrutiny since they are not absolute, but – as the Court repeatedly held – must be viewed in relation to their social function.

Leaving aside these polar opposites, if any other non-absolute fundamental right is systematically at stake in the area concerned by the piece of secondary law (and that seems to be the case of the DSA since it deals with dissemination of online content, which regularly engages multiple fundamental freedoms and rights: the right to privacy and family life, the right to personal data protection as well as the fundamental freedom of expression and to receive information), there is less likelihood that the EU legislature should enjoy a wide margin of discretion and therefore the judicial review should be more strict.

Furthermore, it is true that the case law of the Court instructs us that the objectives pursued by a serious interference with the fundamental rights resulting from the operation of a piece of EU legislation also have to be taken into account in determining the extent of the EU legislature’s discretion. A priori, the significance of such objectives may justify granting more latitude to the EU institutions.

Against that background, the main goal of the DSA, striving to ensure a safe, predictable, and trusted online environment in which phenomena such as illegal content and disinformation are properly addressed, is undoubtedly of primordial importance and called for urgent legislative intervention. The question is whether that goal is capable of justifying a wide margin of discretion of EU legislature and a less intense judicial review.

At first glance, an affirmative answer is hinted at in the abovementioned order of the Vice-President of the Court of Justice. As mentioned, ultimately the Vice-President did not grant the requested interim measure. In a nutshell, he refused to suspend the obligations resulting from Article 39 of the DSA since “the interests defended by the EU legislature prevail, in the present case, over [the provider’s] material interests, with the result that the balancing of interests weighs in favour of dismissing the application for interim measures”.⁵⁴

Nonetheless, that analysis concerned the balancing of interests in granting the interim measure in a particular case and not the general and more abstract inquiry on the erga omnes validity of Article 39 of the DSA. In his order, the Vice-President clearly abstains from assessing the margin of discretion enjoyed by the EU legislature in the field covered by the DSA.⁵⁵

Furthermore, in general, once it is established that a piece of EU legislation concerns an area within fundamental rights such as the right to privacy and family life, the right to personal data protection as well as the fundamental freedom of expression and to receive information are systematically at stake, the CJEU seems to consider the objectives of a serious interference with fundamental rights rather in assessing the proportionality of that specific interference than in determining the margin of discretion enjoyed by the EU institutions in law-making process.⁵⁶

Lastly, even where the EU legislature does not enjoy broad discretion, whether a piece of EU legislation, or a part thereof, can potentially be invalid is yet another question, which has to be thoroughly analysed within a strictly constructed judicial review.

4 Right holders under the DSA and their representation

4.1 Preliminary remarks

The DSA introduces an elaborate set of rules on supervision and enforcement by public authorities both on EU (i.e. Commission) and national level.⁵⁷ In parallel, since some of the obligations imposed on the providers correspond to rights conferred to the recipient of their services, the question of the enforcement of those rights naturally arises. In particular, the DSA gives recipients some tools of transparency to understand the operation of online intermediary services (Articles 17, 20, 21).⁵⁸

Furthermore, since the DSA is based on the layered structure and increasingly more stringent requirements and obligations apply with regard to more complex services, the qualification of a specific service might influence the array of tools at the disposal of the recipients.

Lastly, Article 86, titled “Representation”, provides that the recipients of intermediary services shall have the right to mandate a body, organisation or association to exercise the rights conferred by the Regulation on their behalf, provided that the mandatary meets three conditions: first, it operates on a non-for-profit basis, second, it has been properly constructed in accordance with the law of a Member State and, third, its statutory objectives include a legitimate interest in ensuring that the DSA is complied with.

Recently, the EU courts already had an opportunity to shed some light on the latter provision, though only marginally and in a very specific context of an application to intervene in direct actions. The said context ought to be outlined before attempting to draw any more general findings from the recent decisions of these courts.

4.2 Intervention before the EU courts

Intervention is a procedural mechanism provided for in the Statute of the CJEU and detailed in the Rules of Procedure of the EU courts.⁵⁹ An intervention is limited to supporting the form of order of the main parties.⁶⁰ Under the legal framework, two types of interveners need to be distinguished: privileged and non-privileged interveners.

Member States, EU institutions, and, if the case pertains to the scope of the EEA Agreement, the states party to the EEA Agreement and the EFTA Surveillance Authority, are included in the first category. These parties enjoy a privileged position as they are permitted to intervene in proceedings before the EU courts without needing to satisfy any additional conditions.

No other entity or individual enjoys such a privilege. In order to be given leave to intervene, “bodies, offices and agencies of the Union and to any other person” must establish “an interest in the result of a case” submitted to the CJEU.⁶¹ As a consequence, natural and legal persons can intervene in the direct actions proceedings (e.g. action for annulment) before the EU courts provided that they establish “a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward”.⁶² These requirements result in a high threshold for a successful intervention of a non-privileged intervener.⁶³

To compensate for the strict approach with regard to natural and legal persons and not deprive themselves of the feedback that an intervener may provide, the EU courts developed a strain of case law endorsing a broad interpretation of the right to intervene in favour of representative associations.⁶⁴ That strain of case law seeks also to avoid multiple interventions of the entities represented by such an association since such interventions could frustrate the efficiency and proper conduct of the proceedings.⁶⁵

According to that case law, a representative association is allowed to intervene provided that four conditions are met: first, the association represents a significant number of undertaking active in the sector concerned, second, its objects include the protection of the interests of its members, provided that, third, the case may raise question of principles affecting the functioning of the sector concerned and if, therefore, fourth, the interests of the said members may be affected significantly by the forthcoming judgment.⁶⁶ By contrast, it is immaterial whether the decision of the EU court is likely to alter the legal position of the association itself.⁶⁷

4.3 Case T-348/23 and C-647/23 P(I) Zalando v Commission

A case still pending before the EU courts concerns an online service designated as a very large online platform by a decision of the Commission adopted pursuant to Article 33(4) of the DSA. The provider of the service from Germany brought an action for annulment against the decision of the Commission before the General Court. In the course of that procedure, an association from another EU Member State lodged an application to intervene in the procedure, in support of the form of order sought by the Commission. The application was rejected by an order of the President of one of the Chambers of the General Court based on the consideration that the conditions set forth in the case law concerning the intervention of representative associations were not met.⁶⁸

The association lodged an appeal against that order before the Court of Justice, arguing that its application to intervene has been incorrectly assessed in the light of the conditions provided for in the case law on representative associations. In essence, the association argued that its intervention is based on its proper (own) right that it derives from the DSA.

The Vice-President of the Court of Justice quashed the first instance order and referred the case back to the General Court.⁶⁹ He also instructed the General Court to determine whether the association is effectively the holder of rights conferred by, inter alia, Article 86 of the DSA.⁷⁰

Upon second examination, the President of the Chamber of the General Court ultimately allowed the intervention.⁷¹ In her order of 2024, she found that since the association in question fulfils the requirements set forth in Article 86 of the DSA, it has to be considered as the holder of the of the rights stemming from that provision (“titulaire de droits découlant de l’article 86”), without the need for that entity to demonstrate that it actually represents the interests of consumers.⁷² Subsequently, the President found that the association in question must be regarded as having, in its application to intervene, an interest in the outcome of the dispute.⁷³

4.4 Representative association as a right holder under the DSA

On the surface level, the interpretation provided in the order of 2024 seems to imply that, through the operation of Article 86, the DSA holds the doors wide open for the involvement of representative associations in the enforcement of its provisions. Viewed in isolation, the three requirements of Article 86 seem to be more liberal than the four conditions set forth in the case law on representative associations. In fact, if one follows strictly the interpretation provided in that order, an association established in an EU Member State may apply for intervention in the proceedings on annulation of every decision designating an intermediary service as a very large online platform or a very large online search engine, provided that the association in question operates on a non-for-profit basis and mentions the ensuring of compliance with the DSA among its statutory objectives. There is no need to establish that it represents a significant number of users concerned by the intermediary service in question or that the service even reaches the Member State in which the association is established.

In theory, such a development might be considered beneficial for the sound administration of justice. Originally, the strain of case law on representative associations was developed, inter alia, in order to facilitate the assessment of the context of the cases submitted to the EU Courts.⁷⁴ In a similar vein, opting for an even more generous approach to the interpretation of the right to intervene in favour of bodies meeting the requirements set forth in Article 86 of the DSA could in principle provide more feedback to these courts on the context of the cases relating to the operation of intermediary services falling within the ambit of the Regulation.

However, the interpretation endorsed in the 2024 order merits further commentary both concerning its approach towards the application to intervene in the proceedings before the EU courts and its potential to serve as a foundation for a general understating of Article 86 of the DSA in other contexts in the future.

The order of 2024 might be understood as implying that a “body, organisation or association” meeting the three requirements referred to in Article 86 is a right holder under the DSA, unconditionally and irrespective of a mandate bestowed upon it by the recipients from the Member State to which the service is addressed and irrespective of the legislative choices of that Member State.⁷⁵

Such a reading of that order cannot be uncritically accepted.

First, the findings contained in the order of 2024 are made in a specific context of an application for intervention in the direct action before the EU courts. A reserved stance towards those findings seems to echo in the order of 2024 itself. It cautiously declares that the leave is granted since, “in the circumstances of the case and having regard to the proper administration of justice”, the applicant must be regarded as having, in its application to intervene, an interest in the outcome of the dispute.⁷⁶

Second, a closer look at Article 86 reveals that this provision puts emphasis on the rights of the recipients rather than on the rights of the bodies mentioned in that provision. It requires the Member States to ensure that the recipients (users) of the intermediary services can “at least” mandate the representative bodies to act on their behalf. In essence, Article 86 seeks to empower the recipients of intermediate services by allowing them to have recourse to more experienced entities whose statutory objectives include the legitimate interest of ensuring compliance with the DSA. If anything, the DSA grants a right to the recipients (scil. to confer a mandate upon a representative body) and not a right (scil. to act on behalf of the recipients) to such bodies.

Third, Article 86 of the DSA bears a striking resemblance to Article 80(1) of the GDPR.⁷⁷ The latter states that “the data subject shall have the right to mandate a not-for-profit entity to lodge the complaint on his or her behalf, to exercise the rights referred to in [specific provisions of the Regulation] on his or her behalf, and to exercise the right to receive compensation referred to in Article 82 on his or her behalf where provided for by Member State law.” The Court of Justice recently explained that Article 80(1) of the GDPR “presupposes that the data subject has mandated a body, organisation or association for it to exercise on his or her behalf the rights referred to in [selected provisions of that Regulation]”.⁷⁸ There are no compelling reasons to deviate from that interpretation with regard to Article 86 of the DSA. Hence, also under the latter Regulation, the representative entities enjoy a right derived from an existing mandate.

Consequently, on the one hand, if no mandate is bestowed upon such an entity, the designation of an intermediary service as a very large online platform is not capable of affecting any direct and existing interest of that entity. Under the strict requirements for the successful application for intervention of legal and natural persons in the proceedings before the EU court (and these requirements should be applied since the strain of case law on representative associations is not applicable when the applicant is relying on their own direct right derived from the DSA, as in the case discussed above), there seems to be no justification to grant the leave to intervene. On the other hand, in general and leaving aside the context of applications to intervene in the proceedings before the EU courts, there are even less reasons to consider that the interpretation provided for in the order of 2024 can be accepted as a more general and universal understating of Article 86.

Fourth, Article 86 of the DSA confines itself to setting a minimal standard for involvement of the representative bodies in the exercise of the rights conferred upon the recipients of intermediary services. Under that provision, the recipients of the services should, “at least have the right” to mandate the representative bodies to act on their behalf. However, the DSA does not prevent the Member States from reinforcing the role of representative bodies and setting forth the conditions under which such bodies are authorised to act in the absence of a specific mandate bestowed upon them by the recipients of intermediary services. Against that background, the construction of Article 86 of the DSA mirrors the architecture of Article 80 of the GDSPR. In a nutshell, while Article 80(1) of the GDSR establishes a minimal standard (“The data subject shall have the right to mandate a not-for-profit body, organisation or association […]”), Article 80(2) leaves the Member States with a discretion with regard to its implementation beyond that default solution (“Member States may provide that any body, organisation or association referred to in paragraph 1 of this Article, independently of a data subject’s mandate […])”. In this setting, it is unclear whether, due to the specificity of the proceedings on application for intervention, the order of 2024 deliberately chose to ignore the dichotomy built into Article 86 of the DSA and put in the same container the associations from the Member States that decided to remain faithful to the default solution provided for in the Regulation and the associations from the Member States, which opted for a more generous solution in favour of representative associations. Even if a reading of Article 86 to that effect can be accepted in the context of applications for intervention before the EU courts, it should not be upheld as a general and universal understating of that provision.

5 Conclusion

The DSA is already shaping the digital market within the EU and globally. While it tackles challenges arising from the evolution of online intermediary services, it inevitably brings forth a multitude of legal issues regarding its interpretation and implementation. Consequently, it is likely to spark numerous inquiries regarding its proper comprehension, both in proceedings before EU and national courts.

The first rulings of the EU courts, delivered in incidental proceedings, could serve as a noteworthy reference point for future discussions on the broader understanding of the DSA. However, it is crucial to interpret these rulings within the specific context in which they were rendered.

An intriguing aspect of these rulings is their potential to illustrate two prospective approaches that may emerge in future case law concerning the DSA at both the EU and national levels.

The first case, revolving around interim measures, illustrates the cautious approach taken by EU courts, which chose to rely on established doctrines and concepts – adapting them where necessary – in order to address issues arising under the provisions of the DSA. Conversely, the second case, regarding an application to intervene, might be viewed as an attempt to establish a bespoke solution tailored specifically for the DSA.

Of course, it is yet to be seen which approach will ultimately prevail. Nonetheless, despite all its innovations and virtues, the DSA is still a piece of EU secondary legislation and, as such, it has to be sensibly integrated into the much broader EU legal order.