X Internet UnLtd Company v Coimisiun na Mean (Approved)

Factual and Procedural Background

Company A, the provider of the X social-media platform and a very large online platform under the Digital Services Act (“DSA”), brought judicial review proceedings against The Commission, Ireland’s Digital Services Coordinator. Company A challenged four decisions dated 2 October 2025 concerning user complaints alleging breaches of DSA Articles 16, 17 and 20. [1][2][3][4][5]

In each case, The Commission assessed the complaint, invited Company A’s representations, and then decided under section 201(4)(d) of the Broadcasting Act 2009 to pass the complaint information to its Supervisory Team for wider consideration of regulatory compliance. [6][7][8][9][10][11]

The proceedings concerned the legality of that approach, the validity of delegations used in the decision-making process, and fair-procedures complaints relating specifically to the decision concerning Complainant MR. [12][13][14][15][16]

Legal Issues Presented

1. Whether section 201(4)(d) lawfully permitted The Commission to refer complaint information to its Supervisory Team without finally determining the individual complaints on their merits. [12][17][18]
2. Whether the decision-making arrangements involved an unlawful delegation or improper fettering of statutory discretion under section 8 of the Broadcasting Act 2009. [13][19]
3. Whether the decision concerning Complainant MR breached fair procedures by relying on an Article 20 concern that had not been identified in the proposed-action letter. [14][20][21]

Arguments of the Parties

Company A’s Arguments

• Section 201 required The Commission ultimately to resolve each complaint by dismissing it, upholding it, or taking one of the specified enforcement-related steps; referral to an internal supervisory team allegedly avoided that statutory determination. [18][22][23]
• The referral mechanism allegedly deprived both complainants and Company A of the procedural safeguards and certainty contemplated by section 201. [24][23]
• Company A argued that the handling of the Complainant McW material demonstrated an impermissible investigation of an individual complaint outside the statutory process. [25][26][27]
• Company A argued that the delegation instruments unlawfully limited decision-makers to section 201(4)(c) and (d), preventing consideration of the alternatives in section 201(4)(a) and (b), and thereby fettering discretion. [19][28][29][30]
• As to Complainant MR, Company A argued that it was denied an opportunity to address the specific concern—failure to issue reasoned appeal decisions—that ultimately formed the basis of the final decision. [20][21]

The Commission’s Arguments

• The Commission argued that section 201(4)(d) broadly permitted referral of complaint information to its Supervisory Team as part of wider monitoring and enforcement functions. [31][32]
• It relied on Article 53 and Recital 118 of the DSA, which contemplate complaints informing broader or cross-cutting assessment of provider compliance. [32][33][34]
• The Commission submitted that the section 201 process ended when the complaint information was referred and that any later enforcement action would be a separate statutory process with its own safeguards. [35][36]
• It argued that actions under section 201(4)(a) and (b) could not be delegated because they engaged non-delegable functions under Part 8B of the 2009 Act, while section 8(4) preserved The Commission’s concurrent power to act. [19][37][38]
• The Commission denied any improper fettering, maintaining that a delegate could reject a recommendation and return the matter for consideration by The Commission. [38][39]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court interpreted Article 53 of the DSA as requiring assessment of complaints but not mandating a quasi-judicial determination of each complaint on its individual merits. Article 53 contains no specified outcome where a complaint is not transmitted elsewhere, and Recital 118 recognises that complaints may reveal broader or cross-cutting compliance concerns. [48][49]

Section 201 was interpreted consistently with that structure. Section 201(4)(d), permitting “such other action” as The Commission considers appropriate, was held to be broad enough to allow complaint information, together with identified compliance concerns, to be passed to an internal supervisory team. [50][51]

The Court considered that this approach was particularly compatible with the DSA’s systemic regulatory focus on very large online platforms. Individual complaints could legitimately contribute to a wider body of information supporting broader compliance monitoring or a systemic investigation. [52][53][54][55]

The Court rejected the argument that the Complainant McW material had been used unlawfully. A broader Article 20 investigation under section 139ZI was legally distinct from an investigation of the individual complaint, and the complaint material could be considered alongside other information. [56][57]

On delegation, the Court held that actions under section 201(4)(a) and (b) involve functions under Part 8B, including the appointment of authorised persons who may initiate compliance-notice or investigation processes. Those functions were therefore non-delegable under section 8(3)(f). [58][59][60][61]

By contrast, functions under section 201(4)(c) and (d) were capable of delegation. The Court accepted that delegates could reject a User Complaints Team recommendation and return the matter for consideration by The Commission, which retained power under section 8(4) to exercise the full range of section 201(4) options. The arrangement therefore did not improperly fetter discretion. [62][47][63]

The Court also rejected the arguments that the wrong office-holder acted, that an unlawful predetermined policy existed, or that the delegation arrangements had been concealed. [64][65][66]

In relation to Complainant MR, the Court distinguished between the concerns identified in the proposed-action letter—principally alleged automation and lack of human involvement—and the concern ultimately relied upon in the final decision, namely failure to provide reasoned appeal decisions. Because Company A had not been given an opportunity to address that distinct concern, the final decision breached fair procedures. [67][21]

Holding and Implications

PARTLY ALLOWED: The Court upheld the lawfulness of The Commission’s use of section 201(4)(d) and rejected the delegation challenges. However, it granted an order of certiorari quashing the final decision concerning Complainant MR on fair-procedures grounds. [68][69][70][71]

The judgment confirms that complaint information may be used for broader systemic supervision of digital-service providers, but any final regulatory decision must be based on concerns that the affected provider has had a fair opportunity to address. [54][55][21]