The Digital Services Act applies as of 17 February 2024 and contains a number of new obligations for so-called intermediary services (to the overview here). Until now, little attention has been paid to the obligation for non-European intermediary services to appoint a legal representative in the Union – the Digital Services Act Representative.
What companies are affected?
The Digital Service Act is aimed at so-called intermediary services. These are providers of digital information services, such as
- the routing of users’ information in a communications network, e.g. through messaging services,
- caching services, i.e. the automatic, temporary storage of user information, or
- Hosting services, i.e. the storage of information by cloud services, for example.
These services can be offered globally and do not require an establishment in the target market. In order to ensure effective enforcement of the obligations towards intermediary services without an establishment in the European Union, they must appoint a legal representative in an EU Member State according to Art. 13 Digital Services Act.
What are the duties of the Digital Services Act Representative?
The Digital Services Act Representative is responsible for receiving, complying with and enforcing decisions in relation to the Digital Services Act as the representative of the intermediary service. For this purpose, the Digital Services Act Representative must be authorised to act as a representative. In practice, he communicates with Member State authorities, the European Commission and the European Digital Services Board. Unlike, for example, the EU domestic representative under Art. 27 GDPR, the Digital Services Act representative can be held liable both for his or her own actions and actions of the intermediary service.
How can this obligation be fulfilled and what is important to consider?
Digital Services Act Representatives can be natural or legal persons established in the European Union.
The appointment
- must be made in writing
- must be notified to the Digital Services Coordinator in the Member State where the Digital Services Act representative is established and
- must be publicly announced, e.g. on a website, in sufficient detail to ensure that the name, postal address, e-mail address and telephone number of the Digital Services Act Representative are easily accessible, accurate and always up to date.
In practice, there are the options of appointing employees for example sales representatives, setting up a legal entity or appointing a service provider to carry out this function. The appointment of natural persons is associated with considerable risks due to the liability exposure for them and is likely to be suitable only in exceptional cases. The establishment of a company is always a considerable administrative effort. Whether this effort is worthwhile or whether an operational establishment in the European Union is the better choice should be carefully considered. If there are business reasons for not having an operational establishment in the EU, this approach does not seem to be an option. Therefore, often only one option is left: to look for a service provider established in an EU Member State, being aware of the risks of the function and being able to offer this service.
Click here for the PLANIT // LEGAL service offer to take over the function of the Digital Services Act Representative.