The adoption of the Digital Services Regulation (DSA) in 2022 by the European Union marks an essential turning point in the regulation of digital services. This text aims to harmonize the rules applicable to intermediary service providers, thus responding to the growing diversity of national legislation that threatened to fragment the internal market. However, this desire for harmonization clashes with the aspirations for digital sovereignty of certain Member States, notably France, which wish to maintain a legislative framework adapted to their specific characteristics. It is therefore crucial to understand the implications of the DSA's harmonizing effect on national law, particularly with regard to the due diligence obligations imposed on intermediary services and possible conflicts with existing national legislation. This article explores the consequences of this harmonization, the French legislative provisions likely to suffer, and assesses the impact of this development on the digital sovereignty of member states.
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How does the DSA harmonize the due diligence obligations of intermediary services?
The Digital Services Regulation (DSA) represents a significant step forward in harmonizing the case law obligations of intermediary service providers within the European Union. Applying to a wide range of services, such as data transport, caching and hosting, the DSA establishes a unified legal framework designed to meet the challenges posed by the diversity of national legislation. This harmonization, while salutary for eliminating fragmentation in the internal market, raises questions about its impact on member states' ability to regulate their own digital matters.
Through its articles, the DSA clearly states its objective of creating a "secure, predictable and reliable online environment". To this end, it imposes obligations of care on intermediary service providers, creating minimum standards that must be respected throughout the Union. These obligations include measures to prevent the dissemination of illegal content and to protect users, particularly minors, thereby reinforcing consumer protection and the fundamental rights set out in the Charter of Fundamental Rights of the European Union. The DSA's approach is based on concrete rules, with due diligence obligations, set out in Chapter III, detailing suppliers' responsibilities.
However, this approach does not close the door to additional requirements emanating from other Union legal acts, such as the RGPD or specific sectoral directives. That said, it is crucial to stress that the full harmonization that the DSA aims to achieve could potentially marginalize existing national laws that attempt to outbid or substitute its provisions. The scope of this harmonization extends beyond the mere regulation of services, touching also on the issue of member states' digital sovereignty. By limiting legislative power at national level, the DSA encourages states to rethink their approach to the regulation of digital services, as any legislation that contradicts or supplements the DSA could risk being declared unenforceable. Thus, the integration of these new standards could represent a significant challenge for member states who aspire to maintain specific requirements aligned with their national priorities.
What are the French provisions called into question by the harmonizing effect of the DSA?
Analysis of the harmonization effect of the Digital Services Regulation (DSA) reveals that several French provisions are at risk of being called into question. Indeed, the DSA's ambition to establish a uniform framework for intermediary service providers means that national legislation, including that in force in France, must be scrutinized in the light of this new regulation. One contentious practice concerns the "copy-pasting" of DSA provisions into national law. For example, the French legislature has had to repeal several articles of the Influenceurs law that duplicated obligations already imposed by the DSA. This situation raises the question of the compatibility of new legislative measures with the European regulation, in that any additions that might outbid or contradict the DSA could be deemed inapplicable in light of the principle of full harmonization that the latter promotes.
The SREN law, while seeking to align itself with the DSA, has introduced additional constraints that raise compliance issues. For example, it requires large platforms to draw up content moderation charters, requirements which are not included in the DSA. This imposition could create a direct conflict with the harmonization objectives of the DSA, which seeks to standardize providers' obligations. What's more, certain consumer protection obligations, such as those enshrined in the French Consumer Code, also appear to conflict with the DSA. These clear obligations governing online marketplaces impose a burden that exceeds that required by the DSA, which could lead to difficulties of legal interpretation and potentially litigation before the European courts. With regard to the protection of minors, French regulations impose age control systems for sensitive content, but these requirements could interfere with provisions already made by the DSA, which sets its own standards in this area.
In addition, rules concerning 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 when these rules appear to duplicate or contradict standards already established by the DSA. Finally, tax and social requirements imposed on platforms, although not explicitly contrary to the DSA, raise questions about respect for the principle of harmonization, potentially creating tensions between national legislation and European regulations. Overall, legal bodies will need to assess the scope and validity of these French provisions, through a convergent approach towards the objectives of the DSA as part of a more homogeneous regulation of digital services. A lawyer specializing in Internet law can provide invaluable support in these complex issues.
What is the scope of the DSA's harmonizing effect on member states' digital sovereignty?
The harmonizing effect of the Digital Services Regulation (DSA) is having a significant impact on the digital sovereignty of EU member states. By instituting uniform regulations applicable to intermediary service providers, the DSA calls into question the ability of states to legislate autonomously in an area as crucial as digital services. This poses a real challenge to aspirations for digital sovereignty, particularly for countries like France that wish to retain a legislative framework adapted to their local specificities. Taking as its starting point the DSA's desire to create a coherent legal environment, we note that it aims to minimize the fragmentation of the internal market. In this sense, Member States are forced to adapt to these European standards, which can lead to a dilution of national particularities in terms of digital regulation. This reality means that national legislation, particularly that which seeks to establish additional or contradictory requirements, is likely to be declared unenforceable.
So, even if member states theoretically retain a certain margin for action, their ability to impose regulations that differ from the framework set by the DSA is severely curtailed. In the field of consumer protection, for example, France has traditionally put in place specific regulations to guarantee a high level of protection. However, with the implementation of the DSA, these provisions must now be scrutinized in the light of European regulations, which impose minimum standards. This means that the French State will have to give up some of its prerogatives, adopting standards aligned with those of the DSA, in order to respect the principle of harmonization. The same logic applies to questions of age control or the protection of minors, with specific requirements in these areas having to comply with established European standards. This context leads us to consider how states can still assert their digital sovereignty in the face of these imposed regulations. Member States could seek to replicate certain regulatory initiatives, as long as they do not undermine the effectiveness of the DSA, which in practice drastically limits their latitude for action.
Moreover, the need for coordination at European level to resolve the issues raised by digital services further accentuates this reality: it is becoming essential to develop common policies that transcend national interests in response to global challenges. Thus, despite States' aspirations to maintain autonomous regulation, the scope of the DSA's harmonizing effect seems to be forcing them to substantially reform their national legislation. The challenges of digital sovereignty are thus being redirected towards a collective approach, involving enhanced cooperation within the European Union.
