COMMISSION DELEGATED REGULATION (EU) 2023/1127

of 2 March 2023

supplementing Regulation (EU) 2022/2065 of the European Parliament and of the Council with the detailed methodologies and procedures regarding the supervisory fees charged by the Commission on providers of very large online platforms and very large online search engines

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 (Digital Services Act) (1), and in particular Article 43(4) thereof,

Whereas:

(1) Article 43 of Regulation (EU) 2022/2065 requires the Commission to charge providers of very large online platforms and of very large online search engines annual supervisory fees, the overall amount of which is to cover all estimated costs, as reasonably determinable beforehand, that the Commission incurs regarding the supervisory tasks under that Regulation.

(2) The costs to be estimated for the supervisory fees charged in year n should be determined by taking into account all human resources to be employed by the Commission in the year n+1 to carry out the tasks referred to in Article 43(2) of Regulation (EU) 2022/2065, including officials, temporary and contract agents and seconded national experts. Taking into account that the estimation refers to future costs, it should be based on average costs, expressed in terms of Full-Time-Equivalent increased by the average applicable social contributions and operating expenditure related to these human resources. This operating expenditure should therefore include average costs incurred in order to host and enable a Full-Time-Equivalent unit of personnel to work in the Commission IT and physical infrastructure, for instance as regularly determined by Commission services in the context of calculation of average costs of personnel for the purpose of legislative financial statements.

(3) In addition to the abovementioned costs for human resources, the Commission also needs to estimate other operational and administrative expenditures that are specifically related to the fulfilment of the tasks referred to in Article 43(2) of Regulation (EU) 2022/2065, such as studies, hiring of experts, surveys, missions, organisation of meetings or development or use of specific software or IT tools or services. The yearly estimation of the overall amount of costs, moreover, should take into account the difference between the estimated costs and the incurred costs of the previous year as resulting from the annual report adopted by the Commission.

(4) The overall amount of costs annually estimated by the Commission should be borne by the providers of very large online platforms and of very large online search engines through the supervisory fees charged in respect of the designated services subject to the supervisory fee in each calendar year. In order to ensure consistency with the designation decisions pursuant to Article 33(4) of Regulation (EU) 2022/2065, the notion of provider of designated service or services should be identified with reference to the addressee or addressees of the related designation decision or decisions pursuant to Article 33(4) of Regulation (EU) 2022/2065. Where the decision adopted pursuant to Article 33(4) of Regulation (EU) 2022/2065 is addressed to more than one legal person, all addressees of that decision should be jointly and severally liable for the payment of the supervisory fee in respect of that service or these services.

(5) The services to be accounted for in a given year n should include those already subject to the obligations applicable to very large online platforms and very large online search engines at the beginning of the year, as well as those in respect of which a decision to designate or a decision to terminate the designation will take effect during that calendar year, taking into account that decisions of both categories will take effect four months after their notification to the provider pursuant to Article 33(6) of Regulation (EU) 2022/2065. That time limit should be calculated in accordance with the general rules set out in Regulation (EEC, Euratom) No 1182/71 of the Council (2) determining the rules applicable to periods, dates and time limits.

(6) The Commission should set out the overall amount of the supervisory fee to be charged each year to each provider by first determining a basic amount per designated service. The basic amount per service should result from dividing the overall annual costs estimated for the year n+1 by all the designated services accounted for in the year n. To determine the basic amount, account should be taken of the number of days of designation in year n. Secondly, in order to ensure proportionality of the individual supervisory fees with reference to the size of the designated service as resulting from the number of average monthly active recipients in the Union, the Commission should adjust the basic amount by a coefficient proportionate to the number of active recipients resulting from the available information.

(7) Pursuant to Article 43(5) of Regulation (EU) 2022/2065, any provider of the designated service or services is not to pay an overall amount of supervisory fee exceeding its economic capacity, namely exceeding 0,05 % of its annual worldwide net income. Reference to net income, entailing overall revenues minus costs of the provider, should ensure that the ability to pay of the provider is taken into account, including in case of loss-making providers. In order to identify such limit in accordance with applicable financial reporting standards, reference should be made to the notion of overall worldwide profit in the preceding financial year, to be determined on the basis of the provider’s best available figures resulting from the financial statements, as communicated to the Commission. Therefore, reference should be made to the International Financial Reporting Standards applicable in accordance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council (3), where used by the provider concerned, or in the alternative case to the financial statements compiled in accordance with the reporting requirements pursuant to Directive 2013/34/EU of the European Parliament and of the Council (4). Where neither International Financial Reporting Standards or Directive 2013/34/EU apply to the provider concerned, reference should be made to any other third country acceptable reporting standard applicable to such provider, such as a third country reporting standard that is considered equivalent to International Financial Reporting Standards or any other third country reporting standard that may be considered generally acceptable for the purpose of any other Union legislation. Where a provider has consolidated accounts, the consolidated worldwide profit of the group to which that provider belongs best reflects its economic capacity to pay the supervisory fee, given that the financial resources of the group are available to that provider in order to bear the overall amount of fee charged for all designated service or services provided by that provider.

(8) If the basic amount charged on a given provider, or the sum of the relevant basic amounts where a given provider provides more than one designated service, exceeds the maximum overall limit, the final supervisory fee charged on that provider should be reduced accordingly. In order to ensure that in any case the overall annual costs are paid through the supervisory fees levied across all designated services, the residual amount not charged on providers in view of the application of the maximum overall limit should be borne by the remaining providers below the limit, proportionately to the basic allocation formula. The allocation of residual amounts among other providers of designated services, following the application of the maximum overall limit, should continue until no residual amount remains.

(9) In accordance with Article 43(3) of Regulation (EU) 2022/2065, the Commission is to adopt each year individual implementing acts setting out the individual amount of the supervisory fee to be charged to each provider for the designated service or services subject to the obligation to pay the supervisory fee during that calendar year. The yearly procedure for charging the fee therefore should be organised in a way that those implementing acts are adopted after the overall annual costs, which will be the basis for the calculation of the overall amount of the supervisory fees to be charged, are determined as stated in the Commission preparatory document attached to the draft budget pursuant to Article 41(8) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (5) on the financial rules applicable to the general budget of the Union. Furthermore, the individual implementing acts can be adopted only after a certain date, where the number and size of the designated services subject to the supervisory fees can be established. The procedure should also take into account the economic capacity in terms of profits of the corresponding providers as identified on the basis of the information provided by the concerned provider. Moreover, the provisional amount of the fee to be charged should be communicated to the concerned provider before the adoption of any implementing decision by the Commission, in order to give the opportunity to submit observations to be taken into account in the final determination of the supervisory fee. After considering the observations submitted, the Commission should adopt the corresponding implementing act setting out the individual supervisory fee payable as amount receivable pursuant to Article 98 of Regulation (EU, Euratom) 2018/1046, to be paid by the end of that same calendar year, so that the necessary resources are available to cover the estimated costs for the following year.

(10) The failure to pay within the deadline determined by the implementing acts should give rise to the recovery of the unpaid amount together with default interest at the European Central Bank refinancing rate increased by 3,5 %, in accordance with Article 99(2) of Regulation (EU, Euratom) 2018/1046.

(11) In order to ensure accountability and transparency of the costs incurred and revenues collected by the Commission for the supervisory tasks carried out pursuant to Regulation (EU) 2022/2065, the Commission should annually report them to the European Parliament and the Council and make such report publicly available on its website. Moreover, in order to ensure consistency between the estimation of costs and the specific supervisory costs actually incurred for that year, the report should specifically compare the relevant amounts, based on the payments effectively performed in the relevant period for each concerned category of costs referred to in Article 43(2) of Regulation (EU) 2022/2065, as well as any expenditure commitment undertaken during that year, including following any judicial decision issued during that year. Any difference between the amount estimated and the costs actually incurred should not affect the amount of supervisory fees charged for the relevant year, but it should be taken into account in the next estimation, either by deducting any surplus from the total costs estimated for year n+2 or by adding any deficit to the total costs estimated for year n+2.

(12) The estimation of costs should identify the costs that are planned to be incurred in the following calendar year, in order to ensure that sufficient resources are made available to the Commission in advance. In the period from the entry into force of Regulation (EU) 2022/2065 to 1 January 2024, the Commission will have already incurred or planned costs pursuant to Article 43(2) Regulation (EU) 2022/2065 that could not been covered by any previous supervisory fee and therefore had to be generally covered by other appropriations provided for in the voted budget of the Union for 2023. Therefore, for the purpose of the determination of the overall fees to be charged in 2023, only costs not already covered by existing appropriations in the general budget of the Union for 2023 could be added to the costs estimated for 2024, in accordance with the information provided for in the overview accompanying the estimation. Accordingly, for the purpose of establishing any surplus or deficit to be taken into account in the following estimation, the first report to the European Parliament and the Council should only take into account these costs incurred in 2022 since the entry into force of Regulation (EU) 2022/2065 and in 2023 that were not already covered by existing appropriations,

HAS ADOPTED THIS REGULATION:

Article 1

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘designated service’ means an intermediary service designated as a very large online platform or a very large online search engine pursuant to Article 33(4) of Regulation (EU) 2022/2065;

(2) ‘provider of designated service or services’ means any provider to whom one or more Commission decisions designating a very large online platform or a very large online search engine pursuant to Article 33(4) of Regulation (EU) 2022/2065 is addressed;

(3) ‘basic amount’ means the amount calculated for each designated service in accordance with Article 4 and before the application of the maximum overall limit referred to in Article 5.

Article 2

Estimation of overall annual costs

1.   In each year n the Commission shall estimate the overall annual costs that are expected to be incurred for the performance of the tasks referred to in Article 43(2) of Regulation (EU) 2022/2065 in the following calendar year (year n+1) in accordance with the procedure laid down in Article 6(1) of this Regulation. The amount of the overall annual costs estimated for the year n+1 shall be the basis for determining the overall amount of supervisory fees charged in the year n. That estimated amount shall be fully charged on the providers of designated services through the supervisory fees calculated in accordance with this Regulation.

2.   When estimating the overall annual costs, the Commission shall take into account:

(a) the human resources necessary for the fulfilment of the tasks referred to in Article 43(2) of Regulation (EU) 2022/2065, taking into account different categories of officials and other servants of the Union employed by the Commission. The estimation of costs shall be based on average costs, expressed as Full-Time-Equivalent, and shall include pro-rata average operating expenditure and applicable social contributions linked to such human resources;

(b) any other administrative or operational expenditure necessary for the fulfilment of the tasks referred to in Article 43(2) of Regulation (EU) 2022/2065 that are expected to be incurred during the year n+1, taking into account the non-exhaustive list of items listed in Annex I to this Regulation.

3.   Any estimation of overall annual costs shall take into account the positive or negative amount of incurred costs as included in the report referred to in Article 8(4). In particular, in the event of a deficit, namely where the amount of estimated costs for the year n was lower than the reported costs incurred for that year, the amount of the overall annual costs estimated for year n+2 to be charged during year n+1 shall be increased by the amount of incurred deficit for year n. In the event of a surplus, namely where the amount of estimated costs for the year n exceeds the reported costs incurred for that year, the overall annual costs estimated for year n+2 to be charged during year n+1 shall be reduced by the resulting surplus for year n.

Article 3

Annual identification of designated services

The designated services in relation to which a supervisory fee shall be charged in a given year n shall be:

(a) any service which, on 1 January of that year, was already subject to the obligations of Section 5 of Chapter III of Regulation (EU) 2022/2065 in accordance with Article 33(6) of that Regulation, including any service whose termination of the designation becomes applicable pursuant to Article 33(6) of that Regulation after that date;

(b) any service which becomes subject to the obligations of Section 5 of Chapter III of Regulation (EU) 2022/2065 in accordance with Article 33(6) of that Regulation between 1 January and 31 December of that year.

Article 4

Determination of basic amount per service

1.   In respect of each designated service subject to the supervisory fees pursuant to Article 3, the basic amount for the year n shall be calculated as the share of the overall annual costs estimated for the year n+1 in accordance with Article 2, proportionate to the number of average monthly active recipients of the designated service in line with the coefficient (U) referred to in paragraph 2 of this Article, and taking into account the period during which the service has been designated in line with the coefficient (T) referred to in paragraph 3 of this Article, in accordance with the following formula:

 

[Bild bitte in Originalquelle ansehen]

2.   The coefficient (U) for the calculation of the basic amount for each designated service shall have the value set out in Annex II corresponding to the number of average monthly active recipients in terms of millions of units, rounded down to the nearest hundred thousand.

The number of average monthly active recipients of each designated service determining the applicable coefficient pursuant to the first subparagraph of this paragraph shall be that resulting from data reported by the provider of the online platform or of the online search engine pursuant to Article 24(2) of Regulation (EU) 2022/2065, or information requested pursuant to Article 24(3) of that Regulation or any other information available to the Commission, as available on 31 August of year n.

3.   The coefficient (T) for the calculation of the basic amount for each designated service shall be the proportion between the number of days during which the service is designated in year n, and the number of days of a year, calculated as follows:

 

[Bild bitte in Originalquelle ansehen]

In accordance with Article 33(6) of Regulation (EU) 2022/2065, the period of designation shall be considered to start four months after the date of notification of the designation decision pursuant to Article 33(4) of Regulation (EU) 2022/2065 and shall be considered to end four months after the notification of the termination decision pursuant to Article 33(5) of Regulation (EU) 2022/2065.

Article 5

Determination of the overall amount of the supervisory fee and application of the maximum overall limit per provider

1.   Each year, the concerned provider of designated service or services shall pay a supervisory fee resulting from the basic amount, or the sum of basic amounts, calculated pursuant to Article 4 for the designated service or services it provides, and the adjustments applied pursuant to this Article.

2.   The overall amount of the supervisory fee charged in a given year to a given provider of designated service or services shall not exceed the maximum overall limit equal to 0,05 % of its worldwide profit in the preceding financial year. Where a provider has consolidated accounts, the consolidated worldwide profits of the group to which that provider belongs shall be considered for the purposes of determining the maximum overall limit of the fee.

For the purposes of the first subparagraph of this paragraph, the worldwide profit shall be that resulting from the best available figures from the annual financial statements relating to the last full business year presented by the provider concerned, within the meaning of one of the following:

(a) the International Financial Reporting Standards applicable in accordance with Regulation (EC) No 1606/2002, where used by the provider;

(b) point 17 of Annex V or point 15 of Annex VI to Directive 2013/34/EU;

(c) any acceptable third country reporting standard, where neither point (a) or (b) are used by the provider.

3.   Where the basic amount or the sum of basic amounts calculated pursuant to Article 4 for the designated service or services provided by a given provider exceeds the maximum overall limit set out in paragraph 2 of this Article, the overall amount of the supervisory fee charged to that provider shall be reduced to that limit.

4.   The sum of any residual amounts not charged pursuant to paragraph 3 of this Article shall be charged to the remaining providers of designated services for whom the maximum overall limit is not reached, in proportion to the number of average monthly active recipients of the designated service, expressed as the coefficient (U) referred to in Article 4(2), and taking into account the period during which the service has been designated, expressed as the coefficient (T) referred to in Article 4(3), in accordance with the following formula:

 

[Bild bitte in Originalquelle ansehen]

Where the application of this paragraph triggers the applicability of the maximum overall limit for one or more remaining providers of designated service or services, paragraph 3 and this paragraph shall continue to apply until no residual amount remains.

Article 6

Yearly procedure to determine the individual fees

1.   In accordance with Article 41(8) of Regulation (EU, Euratom) 2018/1046, in the context of the establishment of the draft budget for year n+1, the Commission shall determine, for each relevant budget line, the estimated amount of external assigned revenues stemming from the supervisory fees that will be made available at the beginning of year n+1, as the amounts corresponding to the overall annual costs estimated for year n+1 in accordance with Article 2 of this Regulation.

The estimation pursuant to the first subparagraph of this paragraph shall be accompanied by an overview prepared by the Commission indicating the elements accounted for such estimation in accordance with the different categories of costs of Article 2, to be published at the latest by 30 June of each calendar year on the Commission website.

2.   At the latest by 31 August of each year, any provider of designated service or services subject to the supervisory fee pursuant to Article 3 shall provide to the Commission its latest financial statement, and any other supporting document for the determination of the maximum overall limit pursuant to Article 5 as well as, where applicable, any information necessary for the application of the fee. Where a provider does not provide the documents necessary for the determination of the maximum overall limit, it shall be presumed that this limit is not reached by that provider in that calendar year.

3.   At the latest by 30 September of each year, the Commission shall communicate to each provider of designated service or services identified pursuant to Article 3 the provisional determination of the amount of supervisory fee for all designated services provided by that provider calculated in accordance with the methodology set out in Articles 4 and 5. The provider shall communicate to the Commission any observation on such calculation within two weeks from receipt of the communication of that provisional determination.

4.   At the latest by 30 November of each year, account taken of the observations referred to in paragraph 3, the Commission shall adopt and notify to each provider of designated service or services identified pursuant to Article 3 of this Regulation an implementing decision adopted in accordance with Article 43(3) of Regulation (EU) 2022/2065, determining the supervisory fee for the designated service or services provided by that provider, calculated in accordance with the methodology set out in Articles 4 and 5 of this Regulation. The implementing decision shall establish the amounts receivable as supervisory fee within the meaning of Article 98 of Regulation (EU, Euratom) 2018/1046 and set a deadline to pay the supervisory fees by 31 December of that year. Where a decision adopted pursuant to Article 33(4) of Regulation (EU) 2022/2065 is addressed to more than one legal person, all addressees of that decision shall be jointly and severally liable for the payment of the supervisory fee in respect of the designated service or services.

Article 7

Payment modalities and financial consequences in case of non-payment

1.   All supervisory fees shall be payable in euro and in accordance with the payment references provided for in the implementing decision adopted pursuant to Article 6(4).

2.   Any late payment, partial payment, non-payment or non-compliance with the conditions for payment as set out in the implementing decision referred to in Article 6(4) of this Regulation shall give rise to the recovery of the amount unpaid together with interest at the rate referred to in Article 99(2) of Regulation (EU, Euratom) 2018/1046. Those payments are without prejudice to the fines and periodic penalty payments applicable pursuant to Articles 74 and 76 of Regulation (EU) 2022/2065.

Article 8

Reporting of incurred costs and of the supervisory fees charged

1.   By 31 March of each year n, the Commission shall report to the European Parliament and the Council on the amount of the overall annual costs incurred for the fulfilment of its tasks pursuant to Regulation (EU) 2022/2065 and the total amount of the annual supervisory fees charged pursuant to Article 6(4) of this Regulation in the preceding year (year n-1).

2.   The report pursuant to paragraph 1 shall spell out the specific costs incurred for the fulfilment of the tasks referred to in Article 43(2) of Regulation (EU) 2022/2065 in accordance with the costs categories set out in Article 2(2) of this Regulation. The costs shall include any commitments undertaken during the year n-1, even if the payments implementing the commitments have not yet been performed.

3.   The report pursuant to paragraph 1 shall indicate the overall amount of supervisory fees charged per provider of designated service or services, including the date of respective payments, any missing or late payment, on-going court’s proceeding related to the implementing decisions referred to in Article 6(4) and recovery procedures referred to in Article 7(2) related to the supervisory fees charged, at the date of finalisation of the report.

4.   The report shall indicate any costs incurred pursuant to paragraph 2 that exceeded the amount of estimated costs for year n-1, or any surplus of estimated costs for year n-1 compared to the costs incurred in that year pursuant to paragraph 2, as applicable.

5.   The Commission shall publish the report pursuant to paragraph 1 on its website.

Article 9

Transitional provisions

1.   Costs pursuant to Article 2(1) and (2) already incurred or planned for the period from 16 November 2022 until 31 December 2023 may be added to the first estimation of costs referring to the 2024 period pursuant to Article 6(1) unless already covered by initial appropriations voted by the European Parliament and the Council for the general budget of the Union for 2023.

2.   The first report pursuant to Article 8 shall be adopted by the Commission by 31 March 2024 and shall encompass the period from 16 November 2022 until 31 December 2023. For the purpose of the identification of incurred costs pursuant to Article 8(2), the costs paid out of the appropriations referred to in paragraph 1 shall be indicated separately and they shall not be taken into account for the purpose of the balance referred to in Article 8(4).

Article 10

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the

Official Journal of the European Union

.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 2 March 2023.

For the Commission

The President

Ursula VON DER LEYEN

(1)  

OJ L 277, 27.10.2022, p. 1

.

(2)  Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (

OJ L 124, 8.6.1971, p. 1

).

(3)  Regulation (EC) No 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of international accounting standards (

OJ L 243, 11.9.2002, p. 1

).

(4)  Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (

OJ L 182, 29.6.2013, p. 19

).

(5)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (

OJ L 193, 30.7.2018, p. 1

).

ANNEX I

Non-exhaustive list of operational and administrative expenditure

The following items linked to the performance of tasks referred to in Article 43(2) of Regulation (EU) 2022/2065 may be taken into account for the purposes of Article 2(2), point (b):

— a prudential estimation of any missions performed in the exercise of the powers assigned to the Commission pursuant to Section 4 of Chapter IV of Regulation (EU) 2022/2065, taking into account an estimation of the number of designated services;

— the estimated costs for the physical meetings of the European Board for Digital Services pursuant to Regulation (EU) 2022/2065;

— planned attendance to or organisation of any meetings or events related to the development of expertise and capabilities related to the supervision of emerging and systemic issues;

— a prudential estimation for studies and external consultants referring to a given designated service, including its audits, or analysing a given category of risk resulting from the risk assessment due by designated services pursuant to Article 34 of Regulation (EU) 2022/2065;

— any existing or planned agreements between Commission services, with other Union bodies, offices or agencies or any other national authority concerning the analysis underpinning the supervisory scrutiny of designated services;

— any development or use of any digital tool or environment, including software and APIs, specifically designed to analyse, supervise and test the functioning of any designated service for the purpose of ensuring compliance with Regulation (EU) 2022/2065;

— a prudential estimation for access to databases and performance of surveys aiming at the identification of services to be designated and at assessing the impact of the functioning of designated services with regards to aspects regulated by Regulation (EU) 2022/2065;

— a prudential estimation of the expenditure related to the set-up, acquisition, licencing, subscription, development, maintenance and operation of the information sharing system pursuant to Article 85 of Regulation (EU) 2022/2065 and of the database managed by the Commission pursuant to Article 24(5) of Regulation (EU) 2022/2065.

ANNEX II

U coefficient