The Digital Services Act
Position paper of the Nordic commerce sector
The DSA covers all types of platforms. However, the focus of this paper is
exclusively on online marketplaces that facilitate the sale of tangible goods from 3rd
The Nordic commerce sector welcomes the Digital Services Act. The proposal is a first
essential step to tackle both substantial problems with dangerous, unsafe and non-
compliant products from third country sellers and distortions of competition, which
are detrimental to the rights of consumers, to the competitiveness of European
businesses, and to the goal of more sustainable Single Market.
We believe that several measures introduced in the DSA-proposal are appropriate
and proportional, but the proposal needs refinement in order to effectively address
the problem of unsafe goods entering the EU via online marketplaces. With the new
DSA-initiative, we finally have a chance to improve consumer safety while putting an
end to distorted 3rd country competition for the European commerce sector.
To solve the problem with unsafe and non-compliant products, stronger measures
need to be introduced, such as proactive responsibility, while at the same time closing
Our main points:
• Introduce the concept of a digital importer,
which would designate an online
marketplace with direct liability for goods imported and sold to European
consumers by traders established in 3rd countries.
• There should be liability and an obligation to monitor for online
when they intermediate the sale of goods between a seller in a
third country and a buyer in the EU. This should apply regardless of how
passive the online marketplace is.1
• In these cases, the online marketplaces should bear the responsibility
as an importer and the product liability as an importer. In other words, they
have the responsibility to ensure that the goods sold via the marketplace is in
compliance with EU legislation.
What should legislators consider?
• The non-automatic liability exemption
introduced in art. 5.3
needs to cover
issues such as:
o product safety, environment related legal responsibilities and
intellectual property rights.
o A condition for Article 5.3 to apply should be that the seller is based in a
1 See proposal for obligation under the point about recital 28.
• A general monitoring obligation should be introduced for online marketplaces
which fall under the definition in art. 5.3.
• Recital 28 should be amended in order to permit a specific monitoring
obligation for online marketplaces facilitating the sale of goods from 3rd
o The obligations should be equal to the one’s defined in decision no.
768/2008/EC article R4 obligations of importers
o For example,
the online marketplace/digital importer should be
▪ only place compliant goods on the market,
▪ ensure that appropriate conformity procedures have been carried
out before placing goods on the market,
▪ inform the market surveillance authorities if there is a good
which is considered to have a high risk
▪ confirm that the good comes with right instructions and safety
▪ ensure, while the good is under their responsibility, storage, or
transport, that it does not infringe on requirements set out in
other legislations, such as product safety regulations and
consumer law protection,
▪ carry out sample testing, controls, investigations and keep a
register of complaints of non-conform products and product
• The principle of know your business customer
is a good starting point but
should in cases where the background check has been insufficient, lead to
direct liability for the online marketplace.
o The burden of proof should lie with the
online marketplace to show that
the background check of the sellers on the online marketplace have
o It should, in addition to the introduced obligations in art. 22,
mandatory for the online marketplace to collect documentation about
products and to ensure that it is correct.
• Art. 14
about a notice and action mechanism, should only apply to
intermediaries which do not fall under the definition in art. 5.3.
o The principle needs to be combined with a “stay-down-principle” which
require the online marketplace to monitor that the goods that have been
taken down from the online marketplace is not placed back on the
▪ Failure to comply with a stay-down-principle must immediately
lead to sanctions. Otherwise, it will not be efficient.
• Art. 20
point 1 about measures and protection against misuse mention the
illegal content. “Manifestly illegal content” will be
difficult to apply to online sales of goods, for example counterfeit goods
because the “better” they are, the less evident their illegal nature is to a
layperson (recital 47). The simplest solution to avoid this issue would be to
remove “manifestly” from the text.
What is the problem?
Digital technology is driving societies forward. Commerce is one of the sectors where
digitalization has created great opportunities for consumers and retailers. Today,
online trading is a natural part of our sector, reaching billions of customers each year.
While the commerce sector is undergoing a structural change, new actors and
business models have been introduced. Large companies such as Amazon, Alibaba
and Wish have fundamentally changed the way consumers interact with the
commerce sector and shaped a new way for consumers to buy goods online.
This development has undoubtedly increased the level of competition from 3rd
country market actors. The digital infrastructure of today makes it easier for
consumers to order products from the other side of the world. Consumers do not take
national boarders into account which increases the level of international competition
between market actors. Below is a graph from PostNord’s report Ecommerce in
, which highlights the rapid change of cross-border e-commerce.
Retailers with brick and mortar stores and e-commerce retailers on a daily basis face
large amounts of demands and requirements from both consumers and legislators.
Consumers need to feel safe that toys bought for their children are safe and that
products they use in their everyday life do not harm neither the environment nor
themselves. Since more trade takes place online, it is important that consumers feel
as safe online as they do offline.
With the rise of e-commerce, selling unsafe and counterfeit products to consumers
has been made easier. This negatively affects competition and exposes consumers to a
great risk. Often, consumers think that online marketplaces are responsible for
products sold on their website, but the reality is different. Each year millions of
unsafe and counterfeit products are sold to consumers via an online marketplace,
without having a market actor to hold responsible.
On the 15th of December 2020, Commissioner Margrethe Vestager presented the
DSA-proposal. One of her main messages was that consumers should be equally safe
both in the online and offline environment, and that European companies must be
able to compete on equal terms online and offline.
Also important to mention in that survey results2
shows that 93% of the respondents
expect online marketplaces to ensure that traders on the platform comply with EU
rules. We therefore support Margrethe Vestager’s statement that “rules must be made
that can bring order to the chaos”.
The root of the problem is not increased competition between online and offline
actors, but rather between European companies that are covered by EU legislation
and online marketplaces which are exempt from liability, while facilitating the sale of
dangerous goods from 3rd country sellers. These sellers are impossible to reach with
European legislation and enforcement. It is not reasonable to have different rules for
different business models who both serve the same EU consumers, with the same
essential service the sale of goods. This situation creates unfair competition and we
see the risk that, if we do not address this problem now, retailers will abandon the
business model as a traditional e-commerce trader, and will instead change in an
online marketplace. This could lead to a marked deterioration in product safety and
Analysis of the Digital Services Act proposal
The Nordic commerce sector welcomes the proposal for a Digital Services Act. It is
evident that the E-commerce Directive no longer has the ability to address the
challenges that have arisen when the digital environment has evolved.
We do see the legislative proposal as a good attempt to balance different interests. We
also believe that it is motivated to have different rules for different types of
intermediaries. Both challenges and possible solutions differ vastly, when different
types of intermediary activity may involve such broad array of activities as e.g. social
media, transportation services, accommodation, or sale of goods.
However, with the DSA proposal we find that the legislator has still not fully been
able to solve the problem with liability for 3rd country goods that are being sold to
European consumers via online marketplaces. There is still no level playing field
between European retailers and sellers from 3rd countries. The Nordic commerce
sector view this as remarkable and worrying. We therefore look forward to
contributing to more solid regulations and solutions. We would also like to point out
the need for clarification of certain articles and concepts introduced in the legislation,
such as: the interpretation of the non-automatic liability exemption in art 5.3, the
principle of know your business customer,
and how the measures introduced in the
DSA will solve the problem of dangerous goods and unfair competition.
The DSA includes several different legislative areas and opens for discussion for
adjacent jurisprudence, such as consumer protection law, intellectual property law
and environment related issues.
Consumer protection law
Several rules in the OMNIBUS directive aim to strengthen the consumer’s position in
the online environment. This is very important as e-commerce has accelerated as a
result of the COVID-19 pandemic.
For example, there is an obligation introduced that online marketplaces need to
inform the consumer whether the products are sold via a seller or directly from the
online marketplace or from a private individual. In the latter case the EU consumer
protection rules do not apply.
The rules introduced in the DSA about clear information towards the consumers in art 22
are highly welcomed. The fact that the online marketplace is the only actor
that the consumer has contact with, when they buy the goods through an online
marketplace, strengthen this argument. In many cases the consumer recognizes the
online marketplace as the counterpart in the contract of sale. Reasonably, they need
to be able to turn to the part that gives the appearance of being the counterpart.
The obligations in art 22
should be read together with the non-automatic liability
exemption in art 5.3:
“with respect to liability under consumer protection law of
online platforms allowing consumers to conclude distance contracts with traders,
where such an online platform presents the specific item of information or
otherwise enables the specific transaction at issue in a way that would lead an
average and reasonably well-informed consumer to believe that the information, or
the product or service that is the object of the transaction, is provided either by the
online platform itself or by a recipient of the service who is acting under its
authority or control.”
The purpose of the legislator is to protect consumers from dangerous content, such as
unsafe and non-compliant goods. The necessary prerequisite should therefore, when
determining whether an online marketplace falls under the definition of art 5.3,
the activity of the different players. An active online marketplace, that easily could be
mistaken for a counterpart for the consumer, should be directly liable for non-
compliant goods. An online marketplace cannot, just by fulfilling the obligation in art
claim that they fall outside the definition of art 5.3
. Compliance with art 22
should not, in other words, per se result in a liability exemption.
The actual circumstances should be the determining factor. Until the online
marketplace has proved that it is not active or can be interpret as the counterpart, it
should be considered fully liable for the goods sold on the online marketplace.
Intellectual property right
It is important that the concept of “illegal content” is defined broadly and covers
information relating to illegal content, products, services and activities, as mentioned
in recital 12. By doing so, we can hopefully ensure a safe, predictable, and trusted
In 2016, counterfeit goods amounted to as much as 3.3% of world trade, and up to
6.8% of EU imports from 3rd countries.3 These figures underscore the need for action
against IP crime and trade in counterfeits goods.
The EUIPO also found that in 2013-2017, the presence of counterfeits in the EU
marketplace caused the loss of over 670 000 jobs in legitimate businesses, EUR 83
billion p.a. in lost sales in the legitimate economy for just 11 industry sectors and EUR
15 billion p.a. in Member State tax and social security revenue.4
A report5 show that brands suffering the most from counterfeiting are primarily
registered in the OECD and EU member countries, while China appears as the single
largest producer of these goods.
Notably there is an increasing use of small shipments by counterfeiters due to the rise
of e-commerce and to reduce the risk and financial consequences of detection.
Platforms who generate revenue through advertising are making money through ads
directing their users to sites that sell counterfeit goods and other unsafe products.
Now, platforms are only responsible for removing illegal content once it has been
flagged, but by this point they may well have already benefited financially from its
European sellers need to ensure that the goods they sell follow EU environmental
legislation. This is both costly and time consuming. As e-commerce increases, the EU:
s environmental standards will weaken and the Green deal cannot be successful if
rules and standards do not apply to and are not enforced on all goods in the single
One example is that companies must participate in the organisation of Extended
Producer Responsibility (EPR) systems and/or pay the related fees. This ensures that
goods at the end of life are collected and processed in accordance with agreed
4 Ibid. 5 https://www.worldtrademarkreview.com/anti-counterfeiting/estimating-global-economic-and-social-
standards. 3rd country sellers are technically also obliged to contribute to the EPR
systems, by paying their fair share of the costs. However, authorities lack the means,
both in terms of resources and jurisdiction, to enforce this towards actors from
outside the EU. The reality is therefore that European companies are forced to cover
the costs of handling foreign goods.
Additionally, many of the goods that are imported from 3rd countries via online
platforms contain substances that are prohibited in the EU. When processed with
other goods at the end of life, these substances can contaminate and lower the quality
of whole batches of recycled material.
Another example relates to different taxes such as national chemical or plastic taxes.
The Directive (EU) 2017/2455 states that6: Where a taxable person facilitates,
through the use of an electronic interface such as a marketplace, platform, portal or
similar means, the supply of goods within the Community by a taxable person not
established within the Community to a non-taxable person, the taxable person
who facilitates the supply shall be deemed to have received and supplied
those goods himself.’
However, this only applies to VAT, online marketplaces are
not responsible to ensure that other taxes and fees are paid. For the same reason as
the EPR fees, these taxes are therefore most of the time not collected. This means that
goods coming from 3rd countries will be cheaper, further undermining the
competitiveness of European retailers.
The Nordic commerce sector believes it reasonable that online marketplaces that
facilitate the sale of goods from 3rd countries are required to collect all fees and taxes
the seller is obliged to pay.
The Nordic commerce sector expressed its concern that there are different rules for
different business models at an early stage. We do believe that in order to create a fair
and open single market, the same rules should apply to all companies that engage in
the same kind of activities. This is the only way forward towards a fair and equal
single market. Taking this into account, we can therefore not understand why online
marketplaces still enjoy the possibility to only take action after notices. This is
remarkable given that all other EU-based actors with similar activity in the supply
chain (such as retailers, importers, or e-commerce companies) have proactive
responsibilities to protect consumers.
We also worry about the one-size-fits-all approach that still applies. The Nordic
commerce sector consider that it is a huge difference between assessing what is illegal
content on social media and on an online marketplace. In the latter case the good
either comply with harmonized product safety legislation or not, there are no gray
zones. Against this background, the liability rules should also be adapted and
designed in different ways. To ensure that consumer protection is not undermined,
checks and controls of goods must be performed before they are put on the market.
This is the starting point in all product safety legislation. It is therefore a strange
choice in the DSA proposal to actively not legislate along the same principles.
6 Article 14a, part 2: https://eur-lex.europa.eu/legal-content/en/TXT/HTML/?uri=CELEX:32017L2455&from=FI
We are not arguing for stricter rules for online marketplaces than for other economic
operators, but we are arguing for equivalent rules. Actors in the supply chain that
target the same consumers, with similar products and with the same purpose (to sell
the product) should also have the same liability and responsibility.
Our proposal for a solution
There are several challenges associated with the growth of e-commerce and the online
marketplaces’ increasingly strong position, and there are good reasons to put an end
to the trade of unsafe and counterfeited products.
Our position is that this loophole needs to be closed now. In so many other areas the
EU is working to protect its citizens from unsafe goods and companies from unfair
competition. Several initiatives have been presented by the Commission in recent
years to secure this, for example greater consumer protection, environmental
requirements, taxation on platforms etc. We cannot let sellers from 3rd countries
continue to sell non-compliant goods via online marketplaces without having anyone
Hence, the exemption from liability
and non-monitor obligation
should not apply to
online marketplaces, when they intermediate the sale of good between a seller in a 3rd
country and a buyer in the EU (no matter how passive the online marketplace is).The
online marketplaces should have pre-defined minimum obligations related to the
screening of not only the traders but also the goods offered on the platform.
We find it necessary to make rules adapted to the various forms of platforms. Online
marketplaces selling tangible goods imposes other challenges than search engines,
social platforms, or facilitators of C2C apartment rentals. The proposals below
are targeted towards online marketplaces selling tangible goods.
Introduce a digital importer
The proposed DSA-legislation does not fully address the issues related to unfair
competition and danger for consumers. We strongly believe that legislation should
make online marketplaces have a greater responsibility and are held liable as any
other economic operator taking the same active role in the trading chain.
In cases concerning the sale of products from 3rd country sellers, online marketplaces
should have the role of a digital importer.
Today, when a consumer buys a product
sold by a seller in a 3rd country via an online marketplace there is no actor liable for
the consumer protection law, environmental requirements, product safety legislation
etc. The consumer becomes the importer, and this is obviously not the intention of
We need to cover this loophole. Since enforcing European rules is extremely difficult
towards sellers in 3rd countries, which are often hard or outright impossible to reach,
we instead need to focus on the actor that makes the sale possible. The online
marketplace would then be considered the digital importer
instead of the consumer.
A digital importer
should have liability
for 3rd country goods sold via the online
marketplace. The marketplace would therefor automatically have to monitor the
goods sold via the online marketplace to European consumers. This would per se lead
to an extended obligation in art.22.
which would also cover compliance work for the
goods. The online marketplaces should bear the responsibility and the product
liability as an importer. In other words, the online marketplace should make sure that
the products and the packaging etc. comply with EU legislation.
A digital importer
should also have to check their business partners
business customer) as other active retailers must in the single market. Today,
European retailers, both e-commerce retailers and brick and mortar, spend time and
money on their compliance work. This is of course something that is reasonable to do,
but at the same time it is also burdensome. The same requirements should therefor
also apply to online marketplaces when 3rd country goods are sold via them directly to
A digital importer
should as well have the burden of proof
for the compliance
work. If the digital importer could not ensure that a seller from a 3rd country for
example leave correct contact information, the digital importer cannot enter into
contract with this seller. Hence, the seller cannot be accepted as a business partner
and sell goods via the online marketplace. The same rule should apply to goods. In
other words, an online marketplace, must control goods that are sold on the
marketplace to fulfill its duties as a digital importer. It is up to the digital importer so
prove that this work has been done sufficiently and that there are no reasons to think
that the seller or the goods did not live up to European rules and standards.
The non-automatic liability exemption needs to be interpreted broadly
The Nordic commerce sector strongly welcomes art 5.3:
“with respect to liability under consumer protection law of online platforms
allowing consumers to conclude distance contracts with traders, where such an
online platform presents the specific item of information or otherwise enables the
specific transaction at issue in a way that would lead an average and reasonably
well-informed consumer to believe that the information, or the product or service
that is the object of the transaction, is provided either by the online platform itself or
by a recipient of the service who is acting under its authority or control.”
This article is key to maintain and develop a high level of protection for consumers
and to secure a level playing field. We do not have any opinion about other types of
platforms and weather they should have liability of not, but for the online
marketplaces, which give the appearance of being the counterpart to the consumer, it
is reasonable to establish a direct liability.
Today online marketplaces which control payments, logistics/deliveries, marketing,
algorithms, pricing, and rating give the appearance of being the counterpart. Hence,
most of the online marketplaces have such influential role that they should be
considered the counterpart.
Art 5.3 needs to be interpreted broadly. It is good that consumer protection law is
included, but we ask for clarifications what this definition includes. For us, product
safety is a basic right for consumers, and hence checks and controls of goods will be
interpreted as one of the obligations online marketplaces will have in the future.
Further, we ask for more jurisprudence to be included for example regarding
responsibilities for intellectual property rights and some environment related
obligations such as waste management.
Art 5.3 cannot under any circumstances result in a situation where stronger
requitements are established in other legislations act, such as the general product
There is a need for proactive measures
The Nordic commerce sector is positive to many of the measures introduced in the
DSA proposal. The requirement to announce and appoint a contact person,
that companies established outside the EU must appoint a single point of contact
within the EU. However, we are asking for clarifications on what responsibilities
these actors have and confirmation that these actors do not release the company from
the liability. We suggest that this responsible person
is first and foremost only a
formality, and that it does not function as a legal representative.
This is important
since they more have a role as a paper holder for whom there is no responsibility
neither for the goods nor for consumer safety.
Another problematic rule in the proposed DSA is the recital 28. From that recital it
seems like nothing in the regulation can create a general obligation to monitor
the content or proactively take actions against illegal content. It is important that this
recital is not structured as a setback from the current e-commerce directive. Today
the monitoring requirements depend on the role of the online marketplace. This is a
typical example when one-size-fit-all does not work. Instead of this general
prohibition of a general obligation to monitor, we would need to see a clearer
statement on proactive measures and monitoring obligations for online marketplaces
that facilitate the sale goods from 3rd countries.
The compliance process for a regular retailer, which for example have the role as an
importer, are often misinterpret. It is not like every single product must be checked,
rather a sample test is performed based on risk. This risk based compliance process is
equally possible for an online marketplace as it is for a retailer. Today we have access
to AI-systems that simplify these processes.
Art 14 present a notice and action mechanism
which we welcome. It is a
positive development that there will be a mechanism that makes it possible for
individuals and entities to report and notify the platforms about illegal content. This
is also an example where different rules need to apply different types of platforms. It
is a useful mechanism for social media platforms, where there is a higher threshold to
get content removed since the requirements to motivate why the information is illegal
many time create gray-zones. It is obvious that this is not a good way to handle goods.
All goods fall under the same product safety regulations, either a product is
compliant, or it is not. We do not have the same challenges with gray-zones on online
marketplaces as we have when it comes to statements on social media platforms. This
rule gives the online marketplace a too passive role, which clearly differs from all
other actors within the single market which have great responsibilities to proactively
work to make sure that the products are compliant.
The Nordic commerce sector is looking forward to continue to discuss
the enclosed topics both with the European Parliament and the Council.
We hope that our opinion is taken into account. We will also be happy to
elaborate on this position in depth.