Dara Calleary (Mayo, Fianna Fail) | Oireachtas source

I move amendment No. 8:

In page 14, between lines 13 and 14, to insert the following: "Notice of communication under Article 58(5)

17.The Principal Act is amended by the insertion of the following section after section 139ZJ:

"139ZJA. Where, at any time after the commencement of an investigation pursuant to a direction under section 139ZI(1), the Commission makes a communication under Article 58(5) relating to the suspected contravention which is the subject of the investigation, the Commission shall as soon as is practicable give the inquiry subject notice in writing that the communication has been made.".".

The substantive amendments in this group are amendments Nos. 8, 12 to 16, inclusive, 25, 50, 53 to 57, inclusive, and 60. Amendments Nos. 9 to 11, inclusive, 18, 19, 51, 52 and 58 are technical amendments required as a consequence of the substantive amendments.

Cross-border co-operation and joint investigations among the digital service co-ordinators of member states are important enforcement elements of the digital services regulation. The proposed substantive amendments address the procedural steps required for Coimisiún na Meán or the CCPC, as the case may be, further to a communication by the European Commission of its views or a request for review of a matter under Article 59(3) of the digital services regulation. Such views or request for review may come about in the context of cross-border co-operation activity under Article 58 of the digital services regulation, or in the context of a joint investigation under Article 60 of the digital services regulation.

The amendments are proposed to ensure compliance with Articles 58, 59 and 60 of the digital services regulation and to provide for fair procedures and transparency.

Article 58 of the digital services regulation provides that, where a digital service co-ordinator of destination or the board suspects an infringement of the digital services regulation, they may request the digital service co-ordinator of establishment to assess the matter and take necessary investigatory and enforcement measures to ensure compliance with the digital services regulation. Article 58(5) places an obligation on the digital services co-ordinator of establishment to communicate with the digital services co-ordinator of destination that sent the request and the European board as to the assessment of the suspected infringement and any investigatory or enforcement measures taken or envisaged to ensure compliance with the digital services regulation. For the purposes of fair procedures and transparency, amendment No. 8 makes provisions such that, if an investigation into a suspected infringement of the digital services regulation has been commenced and Coimisiún na Meán makes a communication under Article 58(5) in relation to this investigation, Coimisiún na Meán must notify the inquiry subject of the investigation of this communication.

Article 59(1) of the digital services regulation provides that, where the board is in disagreement with an assessment or the measures taken by a digital services co-ordinator of establishment pursuant to article 58(5) of the digital services regulation, the board may refer the matter to the European Commission. Article 59(3) of the digital services regulation provides that, if the European Commission considers that the assessment or investigatory or enforcement measures taken or envisaged by the digital services co-ordinator of establishment pursuant to Article 58(5) are insufficient, the European Commission will provide the digital services co-ordinator of establishment with its views and request the digital services co-ordinator of establishment to review the matter. The digital services co-ordinator of establishment must take these views on board and take necessary investigatory and enforcement steps to ensure compliance with the DSR.

Amendment No. 12 inserts a provision to ensure that any views of the European Commission as provided under Article 59(3) are considered in the draft report of an investigation as prepared by the authorised officer.

Amendment No. 13 adds to the existing requirements that, when an authorised officer is providing Coimisiún na Meán and the inquiry subject with his or her final report on an investigation, he or she shall also provide any views communicated by the European Commission under Article 59(3) in relation to the matter to which the report relates. This will ensure Coimisiún na Meán will be provided with all the relevant information in one package and that there is full transparency to the inquiry subject.

The European Commission may communicate to Coimisiún na Meán its views and request a matter to be reviewed under Article 59(3) at a time which is after the final report relating to this matter has already been issued by the authorised officer to Coimisiún na Meán and the inquiry subject. To address this circumstance, amendment No. 15 first provides that Coimisiún na Meán must notify the inquiry subject in writing of the European Commission views and the request. This is to provide for fair procedures and for transparency purposes. Second, amendment No. 15 makes provision such that, where Coimisiún na Meán has been requested by the European Commission under Article 59(3) to review a matter, Coimisiún na Meán may take any action necessary to ensure compliance with the DSR. This includes referring the matter back to the authorised officer to reopen the investigation if necessary.

The effect of amendment No. 25 is to ensure that, when determining the amount of any administrative financial sanction to be imposed, Coimisiún na Meán will have regard to any views communicated by the European Commission under Article 59(3) that are relevant to the amount of the sanction.

In terms of joint investigations, Article 60 of the DSR provides that the digital services co-ordinator of establishment may launch a joint investigation with the participation of one or more other digital services co-ordinators. The digital services co-ordinator of establishment must communicate its preliminary position to the other participating digital services co-ordinator, the European board and the European Commission. In the event that the European board disagrees with the preliminary position, it may refer the matter to the European Commission.

Article 59(3) of the DSR provides that, if the European Commission considers the preliminary position is based on assessment or investigatory measures that are insufficient or that enforcement measures taken or envisaged by the digital services co-ordinator of establishment are insufficient, the European Commission will provide the digital services co-ordinator of establishment with its views and request the digital services co-ordinator of establishment to review the matter. The digital services co-ordinator of establishment must take these views on board and take necessary investigatory and enforcement steps to ensure compliance with the DSR.

Amendment No. 14 has the effect of ensuring, in the case of a joint investigation led by Coimisiún na Meán, that the inquiry subject is informed before or at the time that the authorised officer issues the final report to the inquiry subject that the decision made by Coimisiún na Meán as to whether it considers the inquiry subject has committed the contravention to which the subject of the investigation relates and whether to impose a financial sanction is to be considered in the first instance as a preliminary position. The inquiry subject is also to be informed that whether the preliminary position will be adopted as the final decision is dependent on any referral for review by the European Commission and the outcome of such a review by Coimisiún na Meán, acknowledging that a review of the matter by Coimisiún na Meán could lead to the opening of a new investigation.

Amendment No. 16 has the effect of identifying a decision made by Coimisiún na Meán as being a preliminary position in the case of a joint investigation under Article 60 for which Coimisiún na Meán is the lead digital services co-ordinator. This amendment also provides that the inquiry subject to which the preliminary position relates shall be notified of the preliminary position and of any communication to the other participating digital services co-ordinators, the European board and the European Commission by Coimisiún na Meán under Article 60(2) in respect of the preliminary position. Amendment No. 16 further provides that, if the European Commission does not make a request under Article 59(3) for the matter to be reviewed, Coimisiún na Meán shall adopt the preliminary decision as its final decision for the matter. Amendment No. 16 also provides that, if the European Commission makes a request under Article 59(3) for a review of the relevant matter, following such a review Coimisiún na Meán may subsequently adopt the preliminary position as its final position, direct that a new investigation into the matter be opened or take any other action that appears necessary to ensure compliance with the digital services regulation.

The substantive amendments Nos. 50, 53 to 57, inclusive, and 60 have the same effect as the substantive amendments Nos. 8, 12 to 16, inclusive, and 25 except that they refer to procedural steps and provisions for the CCPC rather than Coimisiún na Meán.