14.02.2024

ANCOM has launched a public consultation on the draft decision for establishing the procedure of handling complaints regarding digital services and the draft decision establishing the procedure for the certification of out-of-court settlement bodies dealing with disputes against online platform providers. These normative acts establish procedural aspects aimed at contributing to the application of the provisions of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for digital services and amending Directive 2000/31/EC (the DSA Regulation). The DSA Regulation is binding for Member States and will apply in all EU Member States from 17 February 2024.

Draft decision on establishing the procedure of handling complaints on digital services

According to the draft decision, ANCOM - as Romania’s Digital Services Coordinator - receives, analyzes, sends answers and, where appropriate, redirects to Digital Services Coordinators in other states the admissible complaints received, based on the provisions of Article 53 of the DSA Regulation. According to this Article, recipients of the service, as well as any body, organisation or association mandated to exercise on their behalf the rights conferred by the Regulation, have the right to lodge a complaint against providers of intermediary services, alleging an infringement of the Regulation, with the Digital Services Coordinator of the Member State where the recipient of the service is located or established.

While the main responsibility for the initial handling and resolution of complaints lies with providers of intermediary services, which are obliged to put in place a number of organisational measures to ensure compliance with the Regulation, Digital Services Coordinators must take action when recurrent and systematic failure to comply is brought to their attention.

Based on the analysis of complaints received regarding potentially systematic failure to comply with the Regulation, ANCOM, as Digital Services Coordinator, may order an investigation if the provider of intermediary services concerned has its main place of establishment or residence in Romania or if its legal representative is established in Romania. The proposed deadline for settling these complaints is 90 days, with the possibility of extending it by 90 days in the case of complex situations.

If the provider of intermediary services has its main place of establishment/residence in another state of the European Union or if its legal representative is not established in Romania, ANCOM will forward the complaint to the Digital Services Coordinator in the country of establishment, according to its competences established by the Regulation, informing the complainant on forwarding the complaint. Moreover, ANCOM will mediate the communication between the Digital Services Coordinator in the country of establishment of the provider of intermediary services, both as regards the status of the complaint and any request for additional information, as well as the transmission of the final resolution to the complainant.

! Complaints that are not based on the provisions of Article 53 of the DSA Regulation, but that refer to illegal content disseminated online, will be registered separately for statistical purposes, their resolution falling within the competence of the relevant authorities responsible for the surveillance of a particular sector or field of activity. In such cases, complainants shall be informed, within 30 days, of the reasons why these complaints are not considered to be based on Article 53 and, to the extent possible, shall receive recommendations on how to resolve them, including guidance to contact the provider of intermediary services, information on its obligations under the DSA Regulation, as well as on the relevant competent authority, if identified.

! ANCOM cannot assess online content as illegal (except for the situations in which it is itself a relevant authority in a certain field), the resolution of such complaints lying within the competence of public authorities or institutions holding attributions regarding the supervision of a certain sector or field of activity in accordance with the rules governing their activity. For example, ANCOM has the role of supervisory and control authority in the areas regulated by Government Decision nr. 740/2016 on the making available on the market of radio equipment and Government Decision no. 487/2016 on electromagnetic compatibility.

Draft decision establishing the procedure for the certification out-of-court settlement bodies dealing with disputes against online platform providers

Legal entities may apply to ANCOM for certification as an out-of-court settlement body for disputes against online platform providers.

For obtaining certification as an out-of-court dispute resolution body, interested entities may apply by filling in a standard form and submit all documents and evidence demonstrating that they meet the conditions set out in Article 21 (3) of the DSA Regulation.

The standard form will be made available by ANCOM, at its headquarters and on its website and includes, inter alia, information on identification and contact details, the field of expertise in which it will operate as a body, the official language or languages in the EU in which it can ensure out-of-court dispute resolution and the specific competences, human and technical resources available for out-of-court dispute settlement, the manner and sources of funding of the applicant's activities, the composition of the management structure, as well as the period for which certification is requested.

After the registration of the application, the president of ANCOM will appoint a commission responsible for verifying the application and analyzing its substance. Following the completion of the analysis, the commission will propose to the president of ANCOM either the certification of the out-of-court dispute settlement body, if the applicant has demonstrated that he fulfils all the conditions set out in Article 21 (3) of the DSA Regulation, or the rejection of the application for certification, where the applicant has not demonstrated that it fulfils all the conditions required.

The certified bodies have the obligation to inform ANCOM, within 5 working days, if the information based on which they had been certified has changed. At the same time, certified out-of-court dispute resolution bodies have the obligation to submit to ANCOM, once a year, a report on their operation, specifying, at least, the number of disputes they have received, information on the results of those disputes, the average duration of their resolution, as well as any deficiencies or difficulties encountered. 

Termination of the status of out-of-court dispute resolution body occurs either upon the expiry of the period for which the certification was granted, when the body concerned has not submitted an application for renewal, or, before that deadline, following a request in this regard submitted by the body concerned or as a result of the certificate revocation where ANCOM finds, based on an investigation, that the out-of-court dispute settlement body no longer fulfils the conditions set out in Article 21 (3) of the DSA Regulation.

DSA implementation in Romania

In order to implement the provisions of the DSA Regulation, the Ministry of Research, Innovation and Digitalization together with ANCOM have jointly initiated a draft law establishing the national legislative measures necessary in applying the provisions of the European norm, a normative act assumed by the Government and which is currently in process of adoption by the Parliament.

The draft designates ANCOM as Digital Services Coordinator and establishes, inter alia, the possibility for relevant authorities (institutions, public  authorities with attributions regarding the supervision of a certain sector or field of activity, or judicial authorities) to issue orders obliging the provider of intermediary services to act against illegal content online or to provide certain information.

The DSA Regulation also lays down obligations on providers of intermediary services, both in terms of information and as regards removal of illegal content. In short, everything that is illegal offline is also illegal online and it will be sanctioned by the responsible entities, all this activity being coordinated by ANCOM.

In applying the national rule, ANCOM, as Digital Services Coordinator, is also to adopt procedural measures to support the application of the primary rule. Taking into account this obligation of the institution, as well as the primacy of European legislation over national rules, ANCOM takes a first step in applying the DSA Regulation, launching these two draft decisions for public consultation.

Public consultation process

The draft decision for establishing the procedure of handling complaints regarding digital services and the draft decision establishing the procedure for the certification of out-of-court resolution bodies dealing with disputes against online platform providers are available, in Romanian only, here. Interested persons are invited to submit comments and suggestions no later than 15.03.2024, at the ANCOM headquarters (2 Delea Noua Street, sector 3, Bucharest), via the Online Registry or through the Regional Divisions of the Authority. Comments can also be sent by fax to +40 372 845 402 or by e-mail to consultare@ancom.ro.