DSA Complaints May Inform Wider Supervision Without a Merits Ruling, but Referral Decisions Require Fair Notice

1. Introduction

This judgment clarifies how Coimisiún na Meán may use individual complaints when supervising compliance with the Digital Services Act, Regulation (EU) 2022/2065 (“DSA”). Its central holding is that the Commission need not formally uphold or reject every complaint on its merits. Under section 201(4)(d) of the Broadcasting Act 2009, as amended, it may instead refer complaint information to its internal Supervisory Team where its assessment identifies continuing concerns about compliance.

The judgment also establishes two important qualifications. First, the Commission cannot delegate the initiation of enforcement processes where that requires it to exercise functions under Part 8B of the 2009 Act. Secondly, even a lawful supervisory referral must respect fair procedures: the provider must have an opportunity to address the particular concern on which the referral ultimately rests.

The applicant, X Internet Unlimited Company, challenged four decisions dated 2 October 2025 concerning complaints by users identified as MR, Hy, Hp and McW. Each decision referred complaint information to the Commission’s Supervisory Team. The applicant argued that these referrals unlawfully avoided deciding the complaints, that the Commission’s delegation arrangements restricted the available statutory outcomes, and that the MR decision was procedurally unfair.

As the lead case in a series of similar proceedings between the parties, the judgment has significance beyond the four complaints. It addresses the relationship between individual complaint rights, strategic regulatory supervision and the procedural protections owed to regulated platforms.

2. Regulatory and Factual Background

The statutory framework

The applicant provides the X platform, which is both a hosting service and an online platform under the DSA. It is also designated a very large online platform (“VLOP”). Coimisiún na Meán is Ireland’s Digital Services Coordinator and, for providers principally established in Ireland, the Digital Services Coordinator of establishment.

The complaints concerned three sets of obligations:

• Article 16: accessible, user-friendly mechanisms for notifying allegedly illegal content, together with requirements governing the handling of those notices.
• Article 17: clear and specific reasons for relevant restrictions, including account suspension or termination.
• Article 20: effective internal complaint-handling systems, including accessible appeals and reasoned decisions.

Article 53 gives service recipients a right to complain to their national Digital Services Coordinator about alleged DSA infringements. It requires assessment, appropriate transmission to another competent authority where necessary, and rights to be heard and receive appropriate information. Section 201 implements that complaints mechanism in Ireland.

Following initial assessment, where the Commission does not transmit a complaint elsewhere, section 201(4) requires further assessment and permits it to:

1. initiate the statutory route towards a compliance notice under section 139ZZGA;
2. initiate investigation of the complaint under section 139ZI(1);
3. dismiss complaints falling within specified categories, including frivolous, vexatious, bad-faith or trivial complaints; or
4. “take such other action in respect of the complaint as the Commission considers appropriate”.

Sections 201(5)–(9) provide for notification of the complaint and proposed action, representations by the provider, consideration of those representations, and written notification of the final decision.

The four decisions

The Commission’s User Complaints Team assessed the complaints and recommended action. Proposed-action decisions and final decisions were taken by designated delegates. The final decisions explained that the information would assist wider supervision and that any subsequent formal statutory process would carry its own procedural safeguards.

3. Summary of the Judgment

The High Court rejected the applicant’s general challenges to the referral mechanism and delegation arrangements, but quashed the MR decision for procedural unfairness.

• No compulsory merits adjudication: Article 53 and section 201 do not require every complaint to result in a formal determination that it is upheld or rejected.
• Supervisory referral is lawful: Section 201(4)(d) permits referral of complaint information, representations and identified compliance concerns to the Supervisory Team.
• Subsequent evidential use is permissible: Complaint information may contribute to a separate, broader statutory investigation without unlawfully reopening or bypassing the individual complaints procedure.
• Partial delegation was valid: The Commission could delegate functions under section 201(4)(c) and (d), but not the Part 8B functions engaged by section 201(4)(a) and (b).
• No unlawful fettering was established: Delegates could reject recommendations, allowing the Commission to consider the full statutory range of action.
• The MR decision was unfair: Its sole operative concern differed materially from the concerns identified when representations were invited.

The court granted certiorari in respect of the MR final decision and otherwise refused the relief sought. It did not determine whether the applicant had substantively infringed Articles 16, 17 or 20.

4. Legal Reasoning

A. A decision on a complaint is not necessarily an adjudication of its merits

The applicant’s central submission was that section 201 creates an adjudicative process: a complaint must ultimately be upheld, rejected or placed into a specified enforcement procedure. An internal referral, it argued, merely postponed the necessary determination.

The court rejected that interpretation by distinguishing a decision about what action to take from an adjudication establishing whether the complaint is well-founded. Section 201 requires a decision, but does not invariably require the latter kind of decision.

Article 53 was the starting point. It expressly requires assessment and procedural participation, but does not prescribe a quasi-judicial ruling on every complaint’s merits. Recital 118 reinforced that reading: complaints may provide an overview of a provider’s compliance and reveal “cross-cutting issues”. Individual complaints therefore have an informational and supervisory function as well as a potential enforcement function.

Section 201 did not impose a narrower domestic model. In particular, section 201(4)(d) uses deliberately broad language. The court accepted that it could accommodate upholding a complaint or dismissing it on substantive grounds, but held that those were not its only possible applications.

The resulting principle is that an individual complaint can lawfully become a bridge to wider supervision. Where assessment identifies unresolved compliance concerns, the Commission may decide that transferring the relevant material to its specialist supervisory arm is the appropriate regulatory response.

B. Referral must follow meaningful assessment

The judgment does not treat section 201(4)(d) as authority simply to forward complaints without examining them. The court repeatedly emphasised that the Commission had considered the applicant’s representations and identified specific concerns that remained unresolved.

This was important to the legality of the decisions. The referrals were not substitutes for all assessment; they followed assessment. The Commission had also declined further action on certain aspects of the MR and McW complaints, demonstrating that it distinguished between concerns that had been answered and those that persisted.

The judgment therefore supports a structured supervisory choice, rather than an automatic referral practice. Relevant features included:

• assessment of the complaint and the provider’s response;
• identification of a particular potential compliance problem;
• an explanation connecting that problem to wider supervisory work; and
• preservation of the safeguards applicable to any later statutory action.

C. Regulatory flexibility and finite resources

The court considered the practical scale of the Commission’s responsibilities. According to its evidence, 16 of the 26 designated VLOPs and very large online search engines had Ireland as their jurisdiction of main establishment in the EU. The Commission consequently received complaints originating across Member States, not merely complaints from Irish users.

That context supported an interpretation allowing complaints to be considered together as indicators of broader compliance problems. Separate determinations or investigations confined to individual factual situations might miss an overarching issue or produce outcomes of limited wider value.

However, resources were not an independent source of legal power. Ferriter J expressly recognised that resource considerations could influence choices only between otherwise lawful courses of action. Administrative convenience cannot make an unauthorised procedure lawful.

D. Later use of complaint information does not necessarily continue the original complaint process

The McW complaint supplied a practical test. After referral, its information was considered alongside other material when a separate Article 20 investigation was initiated. The applicant argued that this demonstrated an investigation of the individual complaint “through the back door”.

The court distinguished the legal purpose and scope of the two processes:

• An investigation initiated under section 201(4)(b) concerns the particular complaint.
• A broader investigation under section 139ZI concerns suspected contravention of regulatory obligations more generally.

The same information may be relevant to both without making them the same proceeding. A broader investigation does not become an investigation of an individual complaint merely because that complaint contributes evidence. Its eventual outcome addresses wider compliance, even if it may have implications for the complaint’s underlying circumstances.

This reasoning rejects the idea that information becomes legally confined to the procedure through which the regulator first received it. Its subsequent use must nevertheless occur within the applicable statutory framework and safeguards.

E. Enforcement initiation involves non-delegable Part 8B functions

The delegation dispute required the court to reconcile section 201 with the enforcement provisions it cross-refers to.

Read literally, section 201(4)(a) and (b) refer to the Commission serving a compliance notice or investigating a complaint. But the detailed provisions allocate those operational steps differently:

1. The Commission authorises a Commissioner or staff member as an authorised person.
2. The authorised person forms the relevant statutory opinion or suspicion and may direct an authorised officer.
3. The authorised officer serves the notice or conducts the investigation, as appropriate.

The court therefore interpreted section 201(4)(a) and (b) as empowering the Commission to take the initiating authorisation steps under sections 139ZZGA and 139ZI.

Those steps are functions under Part 8B. Section 8(3)(f) prohibits delegation of the Commission’s Part 8B functions. The fact that section 201 appears elsewhere in the Act does not remove that prohibition: the substance of the function, not simply the location of the referring provision, governs.

The Commission was accordingly correct not to delegate those functions. By contrast, delegation of the functions under section 201(4)(c) and (d) was not prohibited.

F. Limited delegated powers did not unlawfully restrict the statutory discretion

The applicant argued that a delegate empowered only under paragraphs (c) and (d) was inevitably channelled towards dismissal or supervisory referral, excluding enforcement options.

The court rejected that argument on the evidence. The User Complaints Team’s proposed outcome was a recommendation, not a binding instruction. A delegate could examine the material, disagree and return the matter for further consideration. The Commission could then exercise any of the powers under section 201(4)(a)–(d).

Section 8(4) was central: delegated functions remained vested in the Commission and could be exercised concurrently by it. The overall statutory discretion therefore remained available, even though an individual delegate could not exercise every component of it.

The court also rejected the argument that assessment and decision formed an indivisible function that staff could not assist in preparing. The User Complaints Team could assess material for the purpose of recommending an outcome, provided the legally authorised decision-maker independently considered the complaint and representations.

G. The evidence supported a genuine power to reject recommendations

The Commission’s legal director explained the internal reconsideration process in successive affidavits. The applicant challenged the supplemental account as hypothetical and unsupported by contemporaneous documents.

Ferriter J accepted the sworn evidence, including evidence that a delegate had declined a recommendation on at least one occasion. Although documentary corroboration would have been useful, its absence did not render the evidence inaccurate or inadmissible. Nor did the standard decision-record template prevent a rejected recommendation and subsequent decision from being recorded.

This aspect of the judgment is fact-sensitive. It does not dispense generally with documentary proof of regulatory processes. Rather, it explains why the particular evidential challenge failed.

The court also rejected allegations of an undisclosed referral policy. Similar outcomes across complaints did not, without more, prove a secret policy dictating those outcomes. The decision letters sufficiently disclosed that delegated powers were being exercised and identified the relevant delegates. Different titles used for the complaints director did not establish that the wrong office holder had acted.

H. The MR decision crossed the boundary of procedural fairness

The successful challenge concerned the difference between the proposed-action letter and the final reasons.

The Commission initially identified concerns about opportunities to provide legal context, the handling of appeals and the alleged use of automated responses. The applicant addressed those concerns. The final decision, however, referred the Article 20 complaint on the basis that reasoned appeal decisions had not been issued.

That was a distinct requirement. Human review and adequate reasons are not interchangeable: a person may review an appeal without providing sufficient reasons, while the allegation of inadequate reasons calls for a different response.

The court acknowledged that the original complaint mentioned reasoned decisions and had been supplied to the applicant. Nevertheless, once the Commission identified particular concerns as the basis of its proposed action, the applicant could reasonably respond within that framework. The regulator could not then rely solely on a materially different concern without giving an opportunity to address it.

The holding was expressly tied to the particular facts. It does not require the Commission to anticipate every possible development in a complaint. It does require fair notice where the operative basis for regulatory action changes materially. That requirement applied even though referral was not a final finding of infringement, because the referral had potential regulatory significance.

5. Precedents Cited and Their Influence

Statutory interpretation

Heather Hill Management Company CLG v An Bord Pleanála [2024] 2 IR 222 and A, B and C (minor) v The Minister for Foreign Affairs [2023] 1 ILRM 335 supplied the domestic interpretive framework. The judgment also reproduced the reference to Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43; [2022] 2 I.L.R.M 313 within the passage quoted from Murray J.

The governing approach treats language, context and purpose as potentially relevant throughout interpretation. Ordinary meaning remains predominant, but provisions must be understood within the Act and its wider legal setting.

That approach mattered in two ways. It supported reading the broad words of section 201(4)(d) within the DSA’s supervisory architecture. It also required section 201(4)(a) and (b) to be read alongside the detailed Part 8B procedures, rather than literally attributing investigative or notice-serving functions to the Commission that those procedures assign to authorised officers.

Interpretation of EU law

X Internet Unlimited Company v Coimisiún na Meán [2025] IEHC 442 provided the EU-law interpretive formulation used by Ferriter J. Bradley J had drawn on Tumblr Incorporated v Coimisiún na Meán [2024] IEHC 366, particularly paragraphs 155–156.

These authorities establish the need to consider wording, objectives, legislative context and EU law as a whole, with legislative origins potentially relevant. Their role here was methodological: they justified reading Article 53 together with Recital 118 and the wider DSA framework. They were not treated as earlier determinations of the precise referral power now in dispute.

Limits on delegation

Lawlor v Flood [1999] 3 IR 107 was invoked through the administrative-law commentary relied on by the applicant. In that case, the governing legislation authorised examination of witnesses by the tribunal itself; the relevant power could not be transferred to tribunal counsel.

It illustrated delegatus non potest delegare: a statutory power normally belongs to the authority to which legislation assigns it. However, the maxim is a rule of statutory construction, not an absolute constitutional prohibition. Here, section 8 expressly permitted delegation while reserving specified functions. The decisive task was therefore to identify the boundaries of that statutory permission.

Fettering of discretion

Mishra v Minister for Justice [1996] 1 IR 189 supplied the central test for the delegation challenge. Policies or fixed rules must not disable the statutory decision-maker from exercising discretion in individual cases.

The judgment also noted the subsequent approval or use of that principle in Masood v Minister for Justice [2025] IEHC 485, paragraph 53, and Robinson v The Minister for Defence [2023] IECA 88, paragraph 77.

Ferriter J applied the principle directly. The question was not whether every delegate personally possessed every statutory power, but whether the arrangements disabled the Commission from considering the available outcomes. Because recommendations could be rejected and the Commission retained the full discretion, no unlawful fettering occurred.

The data-protection comparison

The Commission also contrasted Article 53 with section 10 of the Data Protection Act 1988 and referred to Articles 57 and 77 GDPR. These were statutory comparisons, not judicial precedents. They supported its submission that complaint regimes differ in the obligations they impose. The judgment should not be read as deciding the extent of complaint-investigation duties under the GDPR.

6. Significance and Potential Impact

A supervisory, rather than exclusively adjudicative, complaints model

The decision confirms that section 201 serves the wider enforcement architecture. A complainant has rights to assessment and procedural participation, but not an automatic entitlement under that section to a formal ruling upholding or dismissing the complaint.

Equally, a provider cannot insist that every complaint be conclusively determined before its information contributes to wider supervision. The judgment favours regulatory learning across complaints rather than legally isolating each complaint from the others.

Clearer limits on delegation

For the Commission, the judgment validates divided responsibility: delegates may exercise specified complaint-handling powers while the Commission retains non-delegable enforcement-initiation functions. For other statutory regulators, its broader lesson is that limited delegation is not necessarily unlawful if the full discretion remains genuinely accessible through reconsideration or escalation.

The holding remains dependent on the particular statutory scheme and evidence. A system that made recommendations effectively binding, or excluded reserved options in practice, would raise different issues.

Fair procedures at an early regulatory stage

The MR outcome is an important counterweight to the broad referral power. Procedural fairness is not postponed until a penalty or formal infringement finding. A preliminary supervisory decision can require a meaningful opportunity to respond where it has potential consequences for the regulated entity.

In practice, regulators should check whether final reasons remain within the concerns fairly notified. If a new issue becomes decisive, supplementary representations may be necessary before the decision is made.

Limits of the ruling

• The court did not find that the applicant had breached the DSA.
• It did not validate every possible referral under section 201(4)(d); the decisions before it followed assessment and identified specific concerns.
• It did not determine the separate judicial reviews concerning the broader Article 20 investigation.
• Its references to systemic or cross-cutting compliance do not alter the DSA’s allocation of competences, including the European Commission’s exclusive powers over Section 5 of Chapter III.
• It did not eliminate other remedies, including the compensation right addressed by Article 54.

7. Complex Concepts Simplified

Judicial review

A court’s examination of whether a public authority acted lawfully, rather than a fresh decision on the underlying complaint.

Ultra vires and intra vires

Acting outside statutory powers, or within them. The supervisory referrals were within the Commission’s powers, although the MR decision was procedurally defective.

Merits adjudication

A determination whether a complaint is substantively right or wrong. Choosing how the regulator will use complaint information is a different kind of decision.

Fettering discretion

Restricting a statutory choice through rigid rules or practices so that relevant alternatives cannot genuinely be considered.

Delegation

Authorising another person to exercise a statutory function. Here, some functions could be delegated, while Part 8B functions remained reserved to the Commission.

Authorised person and authorised officer

Distinct statutory roles: the former may direct enforcement action after applying the relevant threshold; the latter carries out the investigation or serves the notice.

Fair procedures

A meaningful opportunity to answer the concern that will actually justify the decision. Supplying a broad complaint may not suffice if the regulator has identified a narrower case and later changes it.

Certiorari

An order quashing an unlawful decision. Quashing the MR decision did not establish that the underlying complaint was unfounded.

8. Conclusion

The judgment recognises section 201 as a route from individual complaints to wider DSA supervision, not solely a mechanism for deciding individual disputes. It also confirms that statutory limits on delegation can coexist with effective complaint handling where the Commission retains genuine control over all available outcomes.

Its essential balance is clear: the Commission has flexibility over the regulatory use of complaints, but must give fair notice of the particular concern supporting its decision. The MR decision failed that procedural requirement, despite the lawfulness of the referral mechanism itself.