To setting the national DSA scene: ACM designated with starring supervisory role

On 4 February 2025, the Dutch Authority for Consumers and Markets (ACM) was officially designated as the supervisory body for the enforcement of the Digital Services Act (DSA) in the Netherlands in the DSA Implementation Act. This development marks a significant step in the enforcement of the European digital regulatory framework on the Dutch market. The DSA aims to create a safer and more transparent digital environment by preventing illegal and harmful activities online and providing for enhanced user rights. The ACM is given a ‘starring role’ to act as the primary Dutch Digital Services Coordinator (i.e. national authority supervising the DSA) and is therefore now officially vested with powers to supervise and enforce the DSA nationally. The proactive attitude of the ACM since the entry into force of the DSA could lead to interesting developments in the Netherlands.

Dutch-based VLOPs and VLOSEs: European or national supervision?

The DSA is designed to provide a harmonised legal framework with stricter rules for digital services providers regarding transparency, consumer protection, and tackling illegal online content. The DSA employs a risk-based approach, subjecting intermediary services providers with a greater societal impact – referred to as Very Large Online Platforms (“VLOPs”) and Very Large Online Search Engines (“VLOSEs”) – to more stringent obligations than smaller service providers.

On 25 April 2023, the European Commission designated the first cohort of VLOPs and VLOSEs, including some have their main EU establishment is in the Netherlands. The VLOP or VLOSE qualification imposes specific obligations such as identifying, analysing and mitigating systemic risks associated with their services. These risks include illegal content, fundamental rights violations, and electoral integrity. The European Commission has exclusive competence regarding the enforcement of obligations that apply to VLOPs and VLOSEs specifically. VLOPs and VLOSEs with their main establishment in the Netherlands will be subject to supervision the ACM in relation to the ‘general’ obligations of intermediary services.

The supervisory role of the ACM

Dutch businesses were called upon by the ACM to prepare for the DSA already in January 2024. The first guidance by the ACM for webhosting services, web stores, marketplaces and websites and apps distributing content was published in November 2024, once again reminding Dutch companies to prepare and comply with the DSA. As a Digital Services Coordinator, the ACM will act the one-stop shop for complaints about digital service providers. Moreover, the ACM can enforce compliance with the DSA by imposing fines, periodic penalties, commitments or adopting orders. The Dutch DPA, in addition, can impose the same enforcement measures in relation to certain specific obligations of online platforms.

Kick-starting supervision: Three key focus areas

Following its formal designation as competent authority, the ACM immediately indicated it will focus on three core areas:

1. Oversight of Web Hosting Services: The ACM will examine the extent to which web hosting providers comply with the DSA’s obligations, such as the duty to take proactive action against illegal content on their servers. A key challenge here is determining the responsibility of hosting providers for the content uploaded by their end users. The DSA makes it clear that hosting providers (including online platforms) must remove illegal content once they become aware of it – or they risk being held liable.
2. Ensuring Basic Compliance by Online Platforms: Service providers, including online platforms, are required to establish a central contact point and provide an effective mechanism for users to report illegal content. The ACM will assess whether companies respond appropriately to such reports and publish transparency reports on content removal. Online platforms are required to take more elaborate measures than other service providers and, consequently, report more extensively on the actions taken.
3. Protection of Minors: A crucial aspect of the DSA is the protection of minors from being presented with profiling-based advertising and content that may impair their physical, mental or moral development. The ACM will prioritise investigations into the effective implementation of measures to protect minors. After all, minors should be able to go online in a safe and transparent environment according to the ACM.

Future challenges and opportunities

The ACM may face operational and strategic hurdles in effectively enforcing supervising Dutch-based VLOPs, VLOSEs and other intermediary service providers. However, these challenges could be mitigated by aligning DSA supervision with current supervisory tasks of the ACM in relation to the ‘Platform-2-Business’ Regulation, the Digital Markets Act, and the Data Governance Act. This integrated approach can create synergies in enforcement, reducing duplication of efforts and fostering a more coherent regulatory strategy. Furthermore, the ACM can leverage cooperation mechanisms with other Digital Services Coordinators, facilitating the exchange of best practices and consistent enforcement across Member States. 

Finally, while the DSA leads to increased compliance burdens on businesses to foster a safer and fairer online environment, the DSA does bring benefits for (national) intermediary services, its customers and national authorities. A harmonized framework for online services should foster cross-border trade and consistent rules and enforcement. Nonetheless regulatory unclarities for both service providers under the scope of the DSA and customers will remain and national specifics in requirements and enforcement could still arise.