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Communications Networks, Content and Technology 2023

2023 Annual Report on monitoring the application of EU law - Infringement cases by policy area

Infringement cases open at year-end 2019 - 2023

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By clicking on the multi-level chart, you can consult, for 2023, the number of infringement cases open at the year-end per policy sector and per type of infringement.

Compliance promotion activities in 2023

Guidelines on how to implement EU law

  • In January 2023, the Commission published a guidance document ‘DSA: Guidance on the requirement to publish user numbers’ on the Digital Services Act (Regulation (EU) 2022/2065). The guidance contains practical information and supports providers of online platforms and search engines in fulfilling their obligation to publish information on the number of users pursuant to the Digital Services Act.
  • To promote effective cooperation among Member States in the implementation of the Digital Services Act (Regulation (EU) 2022/2065) even before its full entry into application, the Commission adopted in October 2023 the Recommendation on coordinating responses to incidents in particular arising from the dissemination of illegal content. This Recommendation aims to coordinate Member State’s response to the spread and amplification of illegal content, such as terrorist content or unlawful hate speech before it can lead to a serious threat to public security.
  • In October and December 2023, the Commission published several templates in the context of the implementation of the Digital Markets Act (Regulation (EU) 2022/1925). The aim of these templates is to facilitate compliance with the Act by the gatekeepers, which are the companies providing core platform services designated by the Commission. In addition, these templates provide the gatekeepers with information the Commission would require applying the Digital Markets Act.
  • Regarding the NIS2 Directive (Directive (EU) 2022/2555), to support Member States in the transposition, in September 2023, the Commission published two sets of guidelines: Commission Guidelines on the application of Article 4 (1) and (2) of Directive (EU) 2022/2555 (NIS 2 Directive), clarifying the application of provisions concerning the relationship between the NIS2 Directive and current and future sector-specific Union legal acts addressing cybersecurity risk-management measures or incident reporting requirements; and Commission Guidelines on the application of Article 3(4) of Directive (EU) 2022/2555 (NIS 2 Directive), providing clarification on establishment of a list of essential and important entities, as well as entities providing domain name registration services.

Meetings with Member States

Other compliance promotion tools

  • To allow the correct and uniform application of the Digital Services Act (Regulation (EU) 2022/2065), the Commission adopted various delegated and implementing acts.
  • The Commission has launched two new databases to give effect to the objective of the Digital Services Act to increase transparency of digital services: the Digital Services Act Transparency Database and the Digital Services Terms and Conditions Database.
  • In 2023, the Commission signed administrative arrangements with the national media regulators of France, Ireland, Italy, as well as the Dutch competition and consumer authority. Moreover, the Commission, together with the Joint Research Center, has signed a collaboration agreement with the French national centre of expertise for digital platform regulation (PEReN). These bilateral arrangements allow the Commission services and relevant national entities to develop expertise and capabilities supporting the implementation and enforcement of the Digital Services Act. They contribute to organising the practical exchange of information, data, good practices, methodologies, technical systems, and tools.
  • On 12 September 2023, the Commission published its first report containing a preliminary assessment of the state of implementation of the Platform-to-Business Regulation (Regulation (EU) 2019/1150 – ‘P2B Regulation’), which was accompanied by a Staff Working Document and based on the inputs of a dedicated study. Overall, the report found: (i) initial positive effects of the EU’s P2B Regulation, while noting that its full potential is not yet reached; (ii) a current lack of compliance by providers of online intermediation services with the P2B Regulation, coupled with a lack of awareness among business users; and (iii) complementarity with other EU acts.
  • The Commission continued to work in the field of the EU single market for information society services, checking the compatibility with EU law of national measures notified under the e-Commerce Directive (Directive 2000/31/EC) and under the Single Market Transparency Directive (Directive (EU) 2015/1535).

Follow-up given to petitions

In 2023, the Commission handled 11 petitions related to alleged breaches of EU law in the area of information society and media. Most petitions concerned the areas of electronic identification. The Commission assessed these 11 petitions but did not follow-up on any of them. In line with its strategic approach to enforcement, the Commission prioritises its enforcement efforts on the most important breaches of EU law, for instance where it identifies a systemic failure to comply with EU law. On the other hand, individual cases of incorrect application, not raising issues of wider principle or where there is insufficient evidence of a general practice, are usually not followed up. These can often be satisfactorily dealt with by other, more appropriate mechanisms at national level. In addition, the Commission will not follow-up on cases where it could not identify a breach of EU law.

More details can be found below on each of these 11 petitions and the reasons why they were not followed up:           

  • Petition 0234/2023: The petitioner complained about the broadcasting of bullfighting depicting violence. This petition was not pursued as the matter is not regulated by EU law. It is up to Member States to decide on the programmes or content that may impair the development of minors and represent harmful content to their citizens.
  • Petition 0358/2023: The petition called for new legislation to improve the protection of whistleblowers in the field of cybersecurity. The Commission did not pursue the petition as the issue is already addressed by existing and upcoming legislation (the new Directive on measures for a high common level of cybersecurity across the Union NIS2 Directive (Directive (EU) 2022/2555) and the upcoming Cyber Resilience Act).
  • Petition 0520/2023: Alleged breach of the Audiovisual Media Services Directive (AVMSD – Directive 2010/13/EU) in Spain. The Commission did not pursue this petition as the matter raised was out of scope of the AVMSD.
  • Petition 0634/2023: The petition concerned the availability to non-EU citizens residing in EU countries of electronic identification means (eID means). The Commission did not pursue this petition as the question of access to eIDs is not regulated by EU law and is a prerogative of Member States.
  • Petition 0686/2023: The petition concerned a website not offering no-cookie versions online. The Commission did not pursue the petition, in line with its strategic approach to enforcement, because this concerned an individual issue and did not reflect a systemic failure from national authorities to comply with EU law.
  • Petition 0699/2023: The petitioner called for new legislation encouraging social media to integrate mood detection algorithms and identify mental health issues of users. The Commission did not pursue investigations as the issue is already partly addressed by the Digital Services Act (Regulation (EU) 2022/2065) and the Better Internet for Kids strategy. In particular, the Digital Services Act encourages platform providers to prioritise user well-being and safety and requires ensuring a high level of safety for minors.
  • Petition 0747/2023: The petition concerned national restrictions on online gambling in Hungary. The Commission decided not to investigate, in line with its policy on gambling and the internal market. The Court of Justice of the European Union case law clarified that gambling is a sector in which Member States, due to public interest considerations such as consumer protection, have a wide margin for justified restrictions of the provision of gambling services. In this context, it is primarily the responsibility of national responsible enforcement authorities and courts of the Member States to assess, on the merits of the concrete facts of each case, whether there is a breach of the relevant legislation.
  • Petition 0784/2023: The petition concerned the alleged illegality of the Digital Services Act (Regulation (EU) 2022/2065) due to proactive algorithmic over-blocking, constituting an unjustified interference with the fundamental right to freedom of expression. The Commission provided an overview of the transparency rules and safeguards for freedom of expression that are part of the Regulation. The Commission explained that it considers that the Regulation is fully compatible with the right to freedom of expression and information, enshrined in Article 11 of the EU Charter of Fundamental Rights.
  • Petition 0760/2023: The petition concerned the banning of encryption in the EU. While the Commission agreed that encryption is essential to secure digital systems and transactions and to protect fundamental rights, including freedom of expression, privacy and data protection, the Commission did not pursue the petition as there was no breach of EU law.
  • Petition 0871/2023: The petitioner complained about the non-issuance of a resident card to access digital public services for EU citizens residing in another EU Member State. The Commission did not pursue the petition as the matter falls outside the scope of EU law. Member States are free to determine in their national rules the conditions for issuing electronic identification means and the conditions for accessing their online services.

Important preliminary rulings

  • Colt Technology Services and Others, C-339/21;
  • Fastweb and Others (Périodicités de facturation), C-468/20;
  • DIGI Communications, C-329/21;
  • Google Ireland and others C-376/22.

Outlook for 2024

In 2024, the Commission will continue important enforcement work in the area of communications networks, content and technology. In particular, the Commission plans to focus on the following work strands:

  • The Commission will finalise the assessment of the transposition of the European Electronic Communications Code and continue carrying out the respective conformity checks. The Commission will continue to monitor developments in the Member States regarding electronic communications and follow-up on the complaints received.
  • The Commission will continue to rigorously monitor the implementation of the Digital Services Act (Regulation (EU) 2022/2065). In particular, the Commission will closely supervise the compliance of Member States with their obligations to appoint a Digital Services Coordinator by 17 February 2024. As of the full entry into application of the Digital Services Act on 17 February 2024, the Commission will operationalise the Board of digital services. Also, to allow for the efficient communication and cooperation between the Commission, the Board and the Member States, the Commission will launch an information sharing system tool.
  • As direct enforcer of the rules of the Digital Services Act (Regulation (EU) 2022/2065) for very large online platforms or very large search engines, the Commission will continue to closely monitor their compliance and the timely fulfilment of their obligations.
  • Moreover, the Commission will closely monitor the compliance of the designated gatekeepers with the Digital Markets Act (Regulation (EU) 2022/1925) as of 6 March 2024. The Commission will continue the on-going market investigations regarding whether certain core services of two designated gatekeepers would also constitute gateways.
  • The Commission will continue to closely monitor the effective implementation of the Platform-to-Business Regulation (‘P2B Regulation’ - Regulation (EU) 2019/1150), including by following up on the on-going infringement cases.
  • Regarding the enforcement in the field of data economy, the Commission will finalise conformity assessments of the transpositions by Member States of the Open Data Directive (Directive (EU) 2019/1024). In addition, it will monitor the correct and timely application of the Data Governance Act (Regulation (EU) 2022/868) by Member States.
  • The Commission will continue to assess complaints regarding the transposition of the ePrivacy Directive (Directive 2002/58/EC) and continue to monitor developments in Member States.
  • The Commission will follow-up on the open complaints and engage with Member States to ensure the correct implementation of the Regulation on electronic identification and trust services for electronic transactions in the internal market (eIDAS – Regulation (EU) No 910/2014). Since the European Digital Identity Framework has been adopted, the Commission will support Member States in preparing for its application and implementation.
  • The Commission plans to finalise the conformity assessment of the transposition of the Directive on copyright in the Digital Single Market and the Directive on online television and radio programmes.