The consequences of DSA harmonisation on national law: towards uniform regulation of digital services?

The adoption of the Digital Services Act (DSA) in 2022 by the European Union marks a pivotal turning point in the regulation of digital services. This legislation aims to harmonise the rules applicable to providers of intermediary services, thereby responding to the growing diversity of national laws that threatened to fragment the internal market. However, this drive for harmonisation comes into tension with the digital sovereignty aspirations of certain Member States, notably France, which seek to maintain a legislative framework tailored to their own specificities. It is therefore crucial to understand the implications of the DSA's harmonising effect on national law, particularly with regard to the due diligence obligations imposed on intermediary services and the possible conflicts with existing national legislation. This article explores the consequences of this harmonisation, the French legislative provisions liable to be affected by it, and assesses the scope of this development for the digital sovereignty of the Member States.

If you wish to engage a lawyer specialising in consumer law, contact me!

How does the DSA harmonise the due diligence obligations of intermediary services?

The Digital Services Act (DSA) represents a significant step forward in harmonising the case-law obligations weighing on providers of intermediary services within the European Union. By applying to a wide range of services, such as the conveyance of data, caching and hosting, the DSA establishes a unified legal framework intended to address the challenges posed by the diversity of national laws. While beneficial in eliminating the fragmentation of the internal market, this harmonisation raises questions as to its impact on the ability of Member States to regulate their own matters in the digital field.

Through its provisions, the DSA clearly sets out its objective of establishing a “safe, predictable and trusted online environment”. To that end, it imposes due diligence obligations on providers of intermediary services, thereby creating minimum standards that must be complied with throughout the Union. These obligations include measures designed to prevent the dissemination of illegal content and to protect users, in particular minors, thereby strengthening consumer protection as well as the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union. The DSA's approach rests on concrete rules, whereby the due diligence obligations set out in Chapter III detail the responsibilities of providers.

However, this approach does not preclude additional requirements stemming from other legal acts of the Union, such as the GDPR or specific sectoral directives. That said, it is crucial to stress that the full harmonisation the DSA seeks to achieve could potentially marginalise existing national laws that attempt to go beyond or to substitute themselves for its provisions. The scope of this harmonisation extends beyond the mere regulation of services, also touching upon the question of the digital sovereignty of the Member States. By limiting legislative power at national level, the DSA prompts States to rethink their approach to the regulation of digital services, since any legislation that contradicts or supplements the DSA could risk being declared inapplicable. As such, the integration of these new standards could represent a significant challenge for Member States that aspire to maintain specific requirements aligned with their national priorities.

Let's discuss your needs for 15 minutes!

Which French provisions are called into question by the DSA's harmonising effect?

Analysis of the harmonising effect of the Digital Services Act (DSA) reveals that several French provisions are liable to be called into question. Indeed, the DSA's ambition to establish a uniform framework for providers of intermediary services means that national legislation, including that in force in France, must be scrutinised in light of this new regulation. One contentious practice concerns the “copy-pasting” of the DSA's provisions into national law. The French legislature, for instance, had to repeal several articles of the Influencers Act that duplicated obligations already imposed by the DSA. This situation gives rise to the question of the compatibility of new legislative measures with the European regulation, in the sense that any addition that goes beyond or contradicts the DSA could be held inapplicable in light of the principle of full harmonisation that the latter promotes.

The SREN Act, while seeking to align with the DSA, has introduced additional constraints that raise compliance concerns. For example, it requires very large platforms to draw up content moderation charters, requirements that do not appear in the DSA. This imposition could create a direct conflict with the DSA's harmonisation objectives, which seek to standardise providers' obligations. Furthermore, certain obligations relating to consumer protection, such as those enshrined in the Consumer Code, also appear to come into conflict with the DSA. These clear obligations governing online marketplaces impose a burden that exceeds that required by the DSA, which could give rise to difficulties of legal interpretation and potentially to disputes before the European courts. As regards the protection of minors, French regulation imposes age verification systems for sensitive content, but these requirements could interfere with the provisions already adopted by the DSA, which establishes its own standards in this area.

Moreover, rules touching upon environmental protection, such as those governing waste management or energy sobriety, also call into question compatibility with the DSA. Indeed, these two issues are sympathetically linked to the objectives of the Charter of Fundamental Rights, which is why their introduction at national level can pose problems where such rules appear to duplicate or run counter to the standards already established by the DSA. Lastly, tax and social requirements imposed on platforms, although not expressly contrary to the DSA, raise questions as to compliance with the principle of harmonisation, potentially creating tensions between national legislation and the European regulation. Overall, the courts will have to assess the scope and validity of these French provisions, by means of an approach that converges towards the objectives of the DSA within a more homogeneous regulation of digital services. To assist you with these complex issues, a lawyer specialising in Internet law can be a valuable source of support.

I want reliable legal documents!

What is the scope of the DSA's harmonising effect on the digital sovereignty of Member States?

The harmonising effect of the Digital Services Act (DSA) brings about notable repercussions for the digital sovereignty of the Member States of the European Union. By establishing uniform regulation applicable to providers of intermediary services, the DSA calls into question States' ability to legislate autonomously in a field as crucial as that of digital services. This situation poses a genuine challenge to digital sovereignty aspirations, particularly for countries such as France that wish to retain a legislative framework tailored to their local specificities. Taking as a starting point the DSA's intent to create a coherent legal environment, it is clear that it aims to minimise the fragmentation of the internal market. In this sense, Member States find themselves compelled to adapt to these European standards, which can lead to a dilution of national particularities in the field of digital regulation. This reality means that national legislation, in particular legislation that seeks to establish additional or contradictory requirements, is liable to be declared inapplicable.

Thus, even though Member States theoretically retain a certain margin of action, their ability to impose regulations that diverge from the framework set by the DSA is heavily constrained. As regards consumer protection, for example, France has traditionally put in place specific regulations to ensure a high level of protection. However, with the DSA coming into application, these provisions must henceforth be scrutinised in light of the European regulation, which imposes minimum standards. This means that the French State will have to relinquish some of its prerogatives, adopting standards aligned with those of the DSA, in order to comply with the principle of harmonisation. The same logic applies to questions of age verification or the protection of minors, where the specific requirements in these areas must conform to the established European standards. This context leads us to consider how States can still assert their digital sovereignty in the face of this imposed regulation. Member States might seek to replicate certain regulatory initiatives, provided they do not undermine the effectiveness of the DSA, which, in practice, drastically limits their latitude of action.

In addition, the need for coordination at European level to resolve the issues raised by digital services further reinforces this reality: it becomes essential to develop common policies that transcend national interests in order to respond to global challenges. Thus, despite States' aspirations to maintain autonomous regulation, the scope of the DSA's harmonising effect appears to compel them to undertake substantial reform of their national legislation. The issues relating to digital sovereignty are therefore redirected towards a collective approach, involving strengthened cooperation within the European Union.