On 20 October 2023, the National Agency for Administration and Regulation in Communications (“ANCOM”) and the Ministry of Research, Innovation and Digitalization submitted for public consultation the draft law establishing the national legislative measures necessary to implement the provisions of Regulation (EU) 2022/2065 of the European Parliament and of the Council on a Single Market for Digital Services and amending Directive 2000/31/EC (“DSA Regulation”) in Romania.
For context, the DSA Regulation, which primarily concerns online intermediaries and platforms, was adopted with the aim of strengthening the Digital Single Market by establishing a modern legal framework for digital services that ensures the safety of online users and will be applied in its entirety in all EU Member States as of 17 February 2024.
The Romanian legislator intends to adopt this draft law in order to regulate the application of obligations under the DSA Regulation, the designation of the digital services coordinator and the adoption of a sanctioning regime in case the obligations established by national and European regulations are not respected.
As regards the designation of the coordinator of digital services, this will be assigned to ANCOM, which will be the institution responsible for supervising and ensuring compliance with the DSA Regulation by intermediary service providers based in Romania. In this regard, intermediary service providers who will start operating services in Romania will be obliged to inform ANCOM within 45 days from the date they start to offer services. For all communications between ANCOM and suppliers, the "My ANCOM" service, provided free of charge by the authority, will be used.
In order to ensure that the activities carried out in the online environment comply with the legal rules in force, the draft law stipulates the possibility for institutions, public authorities with competence to supervise certain sectors or fields of activity and judicial authorities to issue orders requiring the intermediary service provider to act against illegal content in the online environment or to present certain information.
With regard to the sanctions regime, ANCOM will have the possibility to impose various administrative fines. For example, the authority may apply a fine up to a maximum daily amount of 5% of the average daily turnover worldwide or of the average daily revenue worldwide recorded in the previous financial year if the intermediary service provider does not comply with certain obligations imposed by the draft law, such as: providing information correctly, completely and without misleading, or complying with decisions ordering provisional measures to offer remedies for situations which may be susceptible to cause damages to third parties etc.
Other aspects of the draft law include: (i) the possibility for ANCOM to set annually, as of 2027, the obligation for intermediary service providers having their headquarters in Romania to pay a supervision fee to cover implementation costs, (ii) the procedures related to out-of-court settlement of disputes and (iii) ensuring researchers' access to data on very large online platforms or search engines.
Proposals and comments on the draft law may be submitted until 31 October 2023, after which the final form of the draft will be sent to the public authorities concerned for consideration and approval.
By Alina Man, Managing Associate, and Alina Colibaba, Junior Lawyer, Musat & Asociatii