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)
Commission Delegated Regulation (EU) 2023/1127of 2 March 2023supplementing 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)OJ L 277, 27.10.2022, p. 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 CouncilRegulation (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). 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 CouncilRegulation (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)., 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 CouncilDirective 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).. 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 CouncilRegulation (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). 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: