BAKGRUNN (fra europaparlaments- og rådsforordningen)

(1) The supply of and demand for political advertising are growing and becoming increasingly cross-border in nature. A large, diversified and increasing number of services are associated with that activity, such as political consultancies, advertising agencies, ‘ad-tech’ platforms, public relations firms, influencers and various data analytics and brokerage operators. Political advertising can take many forms, including paid content, sponsored search results, paid targeted messages, promotion in rankings, promotion of something or someone integrated into content, such as product placement, influencers and other endorsements. Related activities can involve, for instance, the dissemination of political advertising upon request of a sponsor or the publication of content against payment or other forms of remuneration, including benefits in kind.

(2) Political advertising can be disseminated or published through various means and media across borders both online and offline. It is rapidly increasing and can be disseminated or published via traditional offline media, such as newspapers, television and radio, but also increasingly via online platforms, websites, mobile applications, computer games and other digital interfaces. The latter are not only particularly likely to be offered cross-border, but also raise novel and difficult regulatory and enforcement challenges. The use of online political advertising is strongly increasing, and certain linear offline forms of political advertising, such as radio and television, are also offered online as on-demand services. Political advertising campaigns tend to be organised to make use of a range of media and forms.

(3) Given that it is normally provided against remuneration, which may include benefits in kind, advertising, including political advertising, constitutes a service activity under Article 57 of the Treaty on the Functioning of the European Union (TFEU). In Declaration No 22, regarding persons with a disability, annexed to the Treaty of Amsterdam, the Conference of the Representatives of the Governments of the Member States agreed that, in drawing up measures under Article 114 TFEU, the institutions of the Union are to take account of the needs of persons with disabilities.

(4) The need to ensure transparency is a legitimate public goal, in conformity with the values shared by the Union and its Member States pursuant to Article 2 of the Treaty on European Union (TEU). It is not always easy for citizens to recognise political advertisements and exercise their democratic rights in an informed manner. An increase in the sophistication of disinformation, diversification of actors, the fast evolution of new technologies and intensified spread of information manipulation and interference in our democratic electoral and regulatory processes are important challenges for the Union and for the Member States. Political advertising can be a vector of disinformation, in particular where the advertising does not disclose its political nature, comes from sponsors outside of the Union or is subject to targeting techniques or ad-delivery techniques. A high level of transparency is necessary inter alia to support open and fair political debate and political campaigns, and free and fair elections or referendums, and to counter information manipulation and interference, as well as unlawful interference, including from third countries. Transparency of political advertising contributes to enabling voters and individuals in general to better understand when they are being presented with a political advertisement, on whose behalf that advertisement is being made, as well as how and why they are being targeted by a provider of advertising services, so that voters are better placed to make informed choices. Media literacy should be supported to help individuals make best use of the transparency of political advertising.

(5) This Regulation aims to ensure that the provision of political advertising is in full respect of fundamental rights.

(6) In the context of political advertising, frequent use is made of targeting techniques and ad-delivery techniques on the basis of the processing of personal data, including observed and inferred personal data, such as data revealing political opinions and other special categories of data. Targeting techniques should be understood as techniques that are used either to address a political advertisement only to a specific person or group of persons or to exclude them, usually with tailored content, on the basis of the processing of personal data. Ad-delivery techniques should be understood as a wide range of optimisation techniques that rely on the automated processing of personal data in order to increase the circulation, reach or visibility of a political advertisement. Such techniques can be used by political advertising publishers and, in particular, by very large online platforms within the meaning of Regulation (EU) 2022/2065 of the European Parliament and of the Council (4), to deliver political advertisements to a targeted audience based on personal data and on the content of advertisements. Delivering advertisements using such techniques involves the use of algorithms which are currently opaque to individuals and the effect of which can differ from what the sponsors, or providers of advertising services acting on behalf of sponsors, intended. Given the potential for the misuse of personal data through targeting, including through microtargeting and other advanced techniques, such techniques may present particular threats to legitimate public interests, such as fairness, equal opportunities and transparency in the electoral process and the fundamental rights to freedom of expression, to privacy and the protection of personal data and to equality and non-discrimination, and the right to be informed in an objective, transparent and pluralistic way.

(7) Political advertising is currently regulated heterogeneously in the Member States, which in many cases tends to focus on traditional media forms. Specific restrictions exist including on cross-border provision of political advertising services, which affect the conduct of cross-border and pan-European political campaigns. Some Member States prohibit Union service providers established in other Member States from providing services of a political nature or with a political purpose during electoral periods. At the same time, gaps and loopholes are likely to exist in the national law of some Member States, resulting in political advertising sometimes being disseminated without regard to relevant national rules and thus risking undermining the transparency regulation of political advertising.

(8) To provide enhanced transparency of political advertising, including to address citizens’ concerns, some Member States have already explored or are considering additional measures to address the transparency of political advertising and to support a fair political debate and free and fair elections or referendums. Those national measures are in particular considered for political advertising published and disseminated online and can include further restrictions. Those measures vary from soft to binding measures and entail different elements of transparency.

(9) That situation leads to the fragmentation of the internal market, decreases legal certainty for providers of political advertising services preparing, placing, promoting, publishing, delivering or disseminating political advertisements, creates barriers to the free movement of related services, distorts competition in the internal market, including between offline and online service providers, and requires complex compliance efforts and additional costs for relevant service providers.

(10) In that context, providers of political advertising services are likely to be discouraged from providing their political advertising services in cross-border situations. That is particularly true for micro, small and medium-sized undertakings, which often do not have the resources to absorb or pass on the high compliance costs connected to the preparation, placement, promotion, publication, delivery or dissemination of political advertising in more than one Member State. That limits the availability of services and negatively impacts the possibility for service providers to innovate and offer multi-medium and multi-national campaigns within the internal market.

(11) A consistent and high level of transparency of political advertising throughout the Union should therefore be ensured when political advertising services are provided, while divergences hampering the free circulation of related services within the internal market should be prevented, by laying down harmonised rules for the provision of political advertising services, including on transparency and related due diligence obligations, for sponsors and providers of political advertising services guaranteeing the uniform protection of rights of persons and supervision throughout the internal market based on Article 114 TFEU.

(12) Member States should not maintain or introduce, in their national laws, provisions on the transparency of political advertising that diverge from those laid down in this Regulation, in particular more or less stringent provisions to ensure a different level of transparency in political advertising. Full harmonisation of the transparency and related due diligence obligations linked to political advertisement increases legal certainty and reduces the fragmentation of the obligations that service providers meet in the context of political advertising.

(13) Full harmonisation of the transparency and related due diligence obligations should be without prejudice to the freedom of providers of political advertising services to provide on a voluntary basis further information on political advertising, as part of the freedom of expression and information protected under Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

(14) This Regulation is limited to harmonising the rules on the transparency and related due diligence obligations for the provision of political advertising services and on the use of targeting techniques and ad-delivery techniques, as well as rules on its supervision and enforcement. It should neither affect the content of political advertisements, nor Union or Member States’ rules regulating aspects related to political advertising other than those covered by this Regulation. Consequently, this Regulation does not alter the rules regulating the conduct and financing of political campaigning, including general bans or limitations on political advertising during specified periods, the so-called silence periods, donations by individual campaign donors or prohibitions regarding the use of commercial advertising for election campaign purposes. Furthermore, this Regulation should not affect, in particular, the fundamental rights to freedom of opinion and freedom of speech.

(15) The specific needs of micro, small and medium-sized undertakings should be taken into account in the application and enforcement of this Regulation, in line with the principle of proportionality. The notion of micro, small and medium-sized undertakings should be understood as undertakings qualifying under Article 3(1), (2) and (3) of Directive 2013/34/EU of the European Parliament and of the Council (5).

(16) This Regulation should provide for harmonised transparency and related due diligence obligations applicable to economic actors providing political advertising and related services, that is, activities that are normally provided for remuneration, which may include benefits in kind. Those services consist in particular of the preparation, placement, promotion, publication, delivery and dissemination of political advertisements. The rules of this Regulation that provide for a high level of transparency of political advertising services are based on Article 114 TFEU. This Regulation should also address the use of targeting techniques and ad-delivery techniques in the context of the promotion, publication, delivery or dissemination of political advertising that are based on the processing of personal data. The rules of this Regulation that address the use of targeting techniques and ad-delivery techniques are based on Article 16 TFEU. Political advertising directed to individuals in a Member State should include advertising entirely prepared, placed, promoted, published, delivered or disseminated by service providers established outside the Union but disseminated to individuals in the Union. To determine whether a political advertisement is directed to individuals in a Member State, factors linking it to that Member State, including language, context, the objective of the advertisement and its means of dissemination, should be taken into account.

(17) The specificities of the medium of publication or dissemination of the political advertisement should be taken into account in the application of this Regulation, in particular to adapt its modalities to television, radio and newspapers, as the case may be, in compliance with Union law.

(18) It should be recalled that the cross-border provision of advertising services in the internal market is subject to the principle of non-discrimination. That principle entails, inter alia, that access by a recipient to a service on offer to the public is not to be restricted solely on the grounds of the recipient’s nationality or place of residence or establishment. Therefore, providers of political advertising services should not be allowed to discriminate against sponsors residing or legally established in the Union on the grounds of their place of residence or establishment, except where the difference of treatment is justified and proportionate in accordance with Union law. Non-discriminatory access to cross-border political advertising services is essential for the recipients of those services to reap all the benefits of the internal market in that sector. Non-discriminatory access to cross-border political advertising services is particularly important for European political parties, given their role in contributing to forming European political awareness and in expressing the will of citizens of the Union as set out in Article 10(4) TEU and Article 12(2) of the Charter and their European legal status pursuant to Regulation (EU, Euratom) No 1141/2014 of the European Parliament and of the Council (6).

Unjustified restrictions by providers of political advertising services on the freedom of European political parties to receive cross-border political advertising services should not be allowed as they obstruct the conduct of effective political campaigns across the Union, thus impeding them from fulfilling the role assigned to them by the Treaties. Consequently, providers of political advertising services should not deny, hinder or make less attractive their services to a European political party solely on the grounds of its place of establishment, including registration, without precluding the possibility of differences of treatment based on justified objective reasons. Similar considerations apply in respect of political groups in the European Parliament that are formed in accordance with the Rules of Procedure of the European Parliament and carry out their duties as part of the activities of the Union. The clause on non-discrimination laid down in this Regulation does not determine, nor affect in any way, the legal status of European political parties or of political groups in the European Parliament as it limits itself to addressing their position as sponsors.

(19) Interference in elections by certain third-country entities or third-country nationals, who may sponsor political advertising in the Union, is known to pose a serious threat to democracy, which is a common value of the Union and the securing of which is of fundamental importance to the Union and its Member States. Consequently, some Member States have already put in place, or are considering, various restrictions on third-country entities or third-country nationals from providing financing in the context of elections. That heterogeneous regulatory situation, which is likely to get worse due to the prevailing tense international climate, creates obstacles for providers of political advertising services to operate on the markets of different Member States. That heterogeneous regulatory situation should therefore be approximated to a common minimum standard. Providers of political advertising services should be required, in the three months preceding an election or referendum organised at Union level or at national, regional or local level in a Member State to only provide political advertising services to citizens of the Union, third-country nationals permanently residing in the Union and having a right to vote in that election or referendum or legal persons established in the Union which are not controlled by third-country entities. The risk of interference in elections or referendums in different Member States and Member States’ assessments of that risk vary, which is why stricter national rules providing notably for longer time periods for restricting sponsoring by third-country entities or third-country nationals may be appropriate in different Member States. The minimum standard of three months should thus not preclude Member States from providing for stricter national rules in compliance with Union law. Where an election or referendum is announced less than three months before the date of that election or referendum, this should not be understood to give rise to obligations in the period before the elections or referendums were announced.

(20) To counter information manipulation and interference in political advertising, ‘online platforms’ as defined in Regulation (EU) 2022/2065 are encouraged, including through the Code of Practice on Disinformation, to establish and implement tailored policies and other relevant measures, including by means of their participation in wider disinformation demonetisation initiatives to prevent the placement of political advertising containing disinformation.

(21) There is no existing definition of political advertising or political advertisement at Union level. A definition at Union level is necessary to establish the scope of application of the harmonised transparency and related due diligence obligations and of the rules on the use of targeting techniques and ad-delivery techniques. That definition should cover the many forms that political advertising can take and any means and modes of publication or dissemination within the Union, regardless of whether the source is located within the Union or in a third country.

(22) The definition of political advertising should include advertising prepared, placed, promoted, published, delivered or disseminated directly or indirectly by or prepared, placed, promoted, published, delivered or disseminated by any means directly or indirectly for or on behalf of a political actor. Political advertising is usually directly or indirectly under the control of a sponsor, which could be a political actor, and which would in particular be able to determine the political nature, content or publication of the political advertising being prepared, placed, promoted, published, delivered or disseminated. Sometimes another entity can ultimately exercise control over a sponsor. Establishing whether an entity is ultimately controlling a sponsor should be based on rights, contracts or any other means which, either separately or in combination, and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an entity, in particular through ownership, the right to use all or part of the assets of an entity, or rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an entity. In order to determine that a message is of a purely private or purely commercial nature, account should be taken of all relevant factors, such as its content, the sponsor of the message, the language used to convey the message, the context in which the message is conveyed, including the period of dissemination, the objective of the message and the means by which the message is prepared, placed, promoted, published, delivered or disseminated and the targeted audience. Messages concerning a political actor’s family status or business activities are likely to be purely private or purely commercial.

(23) The promotion, publication, delivery or dissemination by other actors of a message that is liable and designed to influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process at Union, national, regional or local level should also constitute political advertising. A legislative or regulatory process should include decision-making having binding effects of general application at Union, national, regional or local level. A clear and substantial link should exist between the message and its potential to influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process. In order to determine the existence of such a link, account should be taken of all factors relevant at the time the message was promoted, published, delivered or disseminated, such as the identity of the sponsor of the message, the form and the content of the message, the spoken or written language used to convey the message, the context in which the message was conveyed, including the period of dissemination such as an electoral period, the objective of the message and the means by which the message was promoted, published, delivered or disseminated and the audience targeted. Language should be understood to include any language used in the Union, including regional dialects and sign language, using any means of communication or codification, such as braille and other means. Design should be evident in those factors, and a link should not be exclusively derived retroactively from the impact of a message.

(24) Political advertising comprises the situation where the preparation, placement, promotion, publication, delivery or dissemination of a message which is liable and designed to influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process is carried out by an entity acting on its own behalf (in-house activities). In-house activities, which should be considered as solely relevant for Chapter III of this Regulation, should be understood as activities carried out within an entity that comprise or substantially contribute to the preparation, placement, promotion, publication, delivery or dissemination, by any means, of a message which is liable and designed to influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process.

(25) Commercial advertising and marketing practices can legitimately affect consumers’ perceptions of products and services or their buying behaviour, including through brand differentiation based on company actions in the field of corporate social responsibility, delivering social impact, or any other types of purpose-driven engagement. This Regulation should apply to commercial advertising that is liable and designed to influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process.

(26) The Commission should draw up common guidance for the effective implementation of this Regulation and, in particular, to support the sponsors, or providers of advertising services acting on behalf of the sponsors, in declaring and identifying political advertisements, and to support providers of political advertising services in facilitating and appropriately administrating such declarations.

(27) In the interest of effective communication with the general public, public communication by, for or on behalf of any public authority of a Member State or of the Union, including members of Government, such as press releases or conferences announcing legislative or regulatory initiatives and explaining the policy choice underpinning such initiatives, should not constitute political advertising, provided that they are not liable and designed to influence the outcome of an election or referendum, voting behaviour or a legislative or regulatory process. Similarly, practical information from official sources of Member States or the Union that are strictly limited to the organisation and modalities for participation in elections or referendums, including the announcement of candidacies or the question on which the referendum is held, should also not constitute political advertising.

(28) This Regulation should not apply in cases where a specified public space for the presentation of candidates is explicitly provided for by law and allocated free of charge, for example by allocating space for such presentation in municipalities and other public areas or a particular broadcasting time on television, where this is done in a fair and non-discriminatory manner and on the basis of transparent and objective criteria.

(29) The media contribute to the well-functioning of democratic processes and play an essential role in the freedom of expression and information, particularly during the period immediately before an election. They provide a space for public debate and contribute to public opinion-forming. This Regulation should therefore not affect the editorial freedom of the media. Political opinions expressed in any medium under editorial responsibility should not be covered, unless specific payment or other remuneration is provided by third parties for or in connection with their preparation, placement, promotion, publication, delivery or dissemination. However, when such political opinions are subsequently promoted, published or disseminated by providers of political advertising services, they could be considered to be political advertising.

(30) Political opinions expressed in a personal capacity constitute a particular manifestation of the right to freedom of expression and information. It is not political advertising, and it is necessary that that distinction be clearly made. To do so, political opinions expressed in a personal capacity should not be covered by this Regulation. The identification of political opinions expressed in a personal capacity should normally result from individual self-determination, but contextual elements can be taken into account. Relevant factors could include whether the opinion is issued on behalf of another entity, whether the message intends to self-promote a candidacy or campaign in an election, referendum or legislative or regulatory process, whether it is expressed by an individual who is generally active in campaigning or taking action for change on political or social issues, and whether the message is disseminated to an indefinite number of persons. A political opinion should not be considered as being expressed in a personal capacity if specific remuneration from third parties, including benefits in kind, is provided for, or in connection with, expressing that opinion.

(31) For the purposes of this Regulation, elections should be understood as elections to the European Parliament, all elections or referendums organised at national, regional and local level in the Member States, and elections to establish political party leadership. It should not include other forms of elections such as professional or privately organised ballots.

(32) It is necessary to define political advertisement as an instance of political advertising. Advertisements include the means by which the advertising message is communicated, including by means of in print, by broadcast media, on web sites, search engines and streaming media, or via an online platform service.

(33) The definition of political actors should refer to concepts defined under Union law, as well as under national law in line with international legal instruments such as those of the Council of Europe. The definition of political actors should include affiliated and subsidiary entities of a political party established, with or without legal personality, in order to support it or pursue its objectives, for instance by engaging with a specific group of voters or for a specific electoral purpose.

(34) The definition of political actors should also include candidates for or holders of any elected office, and members of a government of a Member State at national, regional or local level or of Union institutions, with the exception of the Court of Justice of the European Union, the European Central Bank and the Court of Auditors.

(35) The definition of a political advertising campaign should refer to the preparation, placement, promotion, publication, delivery or dissemination of a series of linked political advertisements in the course of a contract for political advertising on the basis of common preparation, sponsorship or funding.

(36) The definition of political advertising should not affect national definitions of political party, political aims, or political campaigns, or alter or interfere with political campaign rules at national level.

(37) The definition of political actor should not affect national rules on who can conduct a political campaign and should not oblige Member States to adopt such rules.

(38) In order to cover the broad range of relevant service providers connected to political advertising services, providers of political advertising services should be understood as comprising providers involved in the preparation, placement, promotion, publication, delivery or dissemination of political advertisements. For example, providers of political advertising services can act on behalf of the sponsors by initiating political advertising services on their behalf.

(39) The definition of providers of political advertising services should not include providers that provide purely ancillary services in relation to political advertising services. Ancillary services are services which are provided in addition to and which complement political advertising, but which have no direct influence on its content or presentation and no direct control over its preparation, placement, promotion, publication, delivery or dissemination. Such services could include transportation, financing and investment, purchasing, sales, catering, marketing, computer services, cleaning, maintenance, postal services, printing services, graphic, sound or photographic design.

(40) A sponsor should be defined as the person or entity on whose behalf a political advertisement is prepared, placed, promoted, published, delivered or disseminated, for instance an individual candidate in an election or a political party, and who is normally the person or entity providing remuneration in exchange for political advertising services.

(41) Political advertising publishers should be defined as providers of political advertising services, usually at the end of the chain of service providers, publishing, delivering or disseminating political advertising by broadcasting, making it available through an interface or otherwise making it available to the public.

(42) Providers of political advertising services have responsibilities which support the achievement of the objectives of this Regulation. Certain providers of political advertising services broadcast, make available through an interface or otherwise bring to the public domain political advertising, and are by virtue of this role in a position to ensure that this is done in compliance with this Regulation and that it provides a high standard of transparency. Those service providers should therefore have specific responsibilities as political advertising publishers, and it is necessary that they are identified as such.

(43) A sponsor should declare truthfully whether the advertising concerned constitutes political advertising as defined in this Regulation and, in the last three months preceding an election or referendum organised at Union level or at national, regional or local level in a Member State, whether it is able to act as a sponsor according to this Regulation. The sponsor should be responsible for the accuracy of such declarations. In addition, once advertising has been identified as political, its further dissemination should still comply with transparency and related due diligence requirements.

(44) In view of the importance of guaranteeing in particular the effectiveness of the rules on transparency and related due diligence requirements, contractual arrangements concluded for the provision of political advertising services should ensure that the information necessary to enable providers of political advertising services to comply with this Regulation is transmitted in good faith and in a complete and accurate manner, and without undue delay. In case of a declaration or information that is incomplete, outdated or erroneous, this Regulation should provide for the completion, updating or correction of such declaration or information. This should not constitute a general obligation for the provider of political advertising services to monitor the truthfulness of declarations concerning the political nature of advertisements or to engage in excessive or costly fact-finding exercises. In order to efficiently implement the requirement to complement, update or correct such declaration or information, providers of political advertising services should adapt their online interfaces to facilitate compliance with such obligations.

(45) Providers of advertising services should consider a declaration or information as manifestly erroneous if that is apparent from the content of the advertisement, the identity of the sponsor, or the context in which the relevant service is provided, without further verifications or fact-finding exercises.

(46) Political advertising publishers that are also very large online platforms and very large online search engines within the meaning of Regulation (EU) 2022/2065 should diligently identify, analyse and assess any systemic risks that their political advertising services pose in the context of their risk assessments according to Article 34 of that Regulation and put in place reasonable, proportionate and effective mitigation measures in accordance with Article 35 of that Regulation to address those risks.

(47) The rules on transparency and related due diligence requirements laid down in this Regulation should only apply to political advertising services, that is, political advertising that is normally provided against remuneration, which may include benefits in kind. Those rules should not apply to content uploaded by a user of an online intermediary service, such as an online platform, and disseminated by the online intermediary service without consideration for the placement, publication, delivery or the dissemination of the specific message, unless the user has been remunerated by a third party for the political advertisement.

(48) The rules on transparency and related due diligence requirements should also not apply to the sharing of information through electronic communication services, such as electronic message services or telephone calls, provided that no political advertising service is involved.

(49) Freedom of expression and information, as protected by Article 11 of the Charter, covers an individual’s right to hold political opinions, receive and impart political information and share political ideas. Any limitation to that freedom has to comply with Article 52 of the Charter. That freedom can be subject to modulations and restrictions where they are necessary and justified by the pursuit of a legitimate public interest and comply with the general principles of Union law, such as proportionality and legal certainty. That is inter alia the case where political ideas are communicated through providers of political advertising services. Freedom of expression and information is one of the cornerstones of a lively democratic debate.

(50) This Regulation should not have the effect of requiring Member States to take measures in contravention of fundamental principles relating to freedom of expression and information, in particular freedom of the press and freedom of expression in other media as they result from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where those rules relate to the determination or limitation of liability.

(51) As regards online intermediaries, Regulation (EU) 2022/2065 applies to political advertisements published or disseminated by online intermediaries through horizontal rules applicable to all types of online advertising, including commercial and political advertisements. On the basis of the definition of political advertising in this Regulation, it is appropriate to provide additional granularity of the transparency requirements laid down for advertising publishers falling under the scope of Regulation (EU) 2022/2065, in particular very large online platforms. This concerns in particular information related to the funding of political advertisements. The requirements laid down in this Regulation should be without prejudice to Regulation (EU) 2022/2065.

(52) The preparation, placement, promotion, publication, delivery and dissemination of political advertisements can involve a complex chain of providers of political advertising services. That is the case in particular where the selection of advertising content, the selection of targeting and ad-delivery criteria, the provision of data used for the targeting and delivery of an advertisement, the provisions of targeting techniques and ad-delivery techniques, and the delivery of an advertisement and its dissemination can be controlled by different service providers.

In addition, sponsors can also be involved at different stages of the preparation, placement, promotion, publication, delivery and dissemination of political advertising. Similarly, for the purpose of targeting techniques and ad-delivery techniques, a controller could determine the purposes and means of the processing jointly with other controllers or the processing operation could be carried out on behalf of the controller by another entity. In light of the case law of the Court of Justice of the European Union, joint controllership can also be established when only one entity has access to the personal data concerned. Due to their different contributions, namely definition of targeting parameters, designation of data categories and processing when displaying ads, service providers and sponsors would regularly decide jointly on the means and purposes of processing of personal data for political advertising, and could therefore be considered to be joint controllers pursuant to Article 26 of Regulation (EU) 2016/679 of the European Parliament and of the Council (7) and Article 28 of Regulation (EU) 2018/1725 of the European Parliament and of the Council (8). Hence, it is necessary to provide for a clear allocation of responsibilities of the various entities under this Regulation.

(53) Where an artificial commercial or contractual construction risks circumventing the effectiveness of the transparency obligations laid down in this Regulation, those obligations should apply to the entity or entities that in substance provide the advertising service.

(54) While providing for specific requirements, the obligations laid down in this Regulation should not be understood as imposing a general monitoring obligation on intermediary service providers for political content shared by natural or legal persons, or as imposing a general obligation on intermediary service providers to take proactive measures in relation to illegal content which those providers transmit or store.

(55) To support compliance with the requirements of this Regulation, notably those on the use of targeting techniques and ad-delivery techniques in the context of online political advertising, intermediary service providers are encouraged to facilitate the identification of political advertising uploaded or disseminated directly by users via their online intermediary service. For instance, intermediary service providers could put at the disposal of users efficient mechanisms to indicate that an advertisement is political.

(56) Transparency of political advertising should enable individuals to understand that they are confronted with a political advertisement. Political advertising publishers should ensure the publication, together with each political advertisement, of a clear statement to the effect that it is a political advertisement and of other information, such as the identity of its sponsor, the political campaign it is part of and whether it has been subject to targeting techniques and ad-delivery techniques. Where appropriate, the name of the sponsor could include a political logo. Political advertising publishers should ensure that political advertisements are correctly labelled and should make use of labelling which is effective and which includes the specified information, including a clear indication of where to retrieve the transparency notice. Implementing powers should be conferred on the Commission to adopt implementing acts to establish the format and the template of the labels and to ensure that they are adapted to the medium used, taking into account the latest technological and market developments, relevant scientific research and best practices.

(57) In order to support accountability in the political process, the information to be provided in a transparency notice should also include the identity of the sponsor and, where applicable, of the entity ultimately controlling the sponsor. The place of establishment of the sponsor and whether the sponsor is a natural or legal person should be clearly indicated. Personal data concerning individuals involved in political advertising, unrelated to the sponsor or other involved political actors should not be provided in the transparency notice. The transparency notice should also contain information on the dissemination period, any linked election, the amount spent for and the value of other benefits received in part or full exchange for the specific advertisement as well for the entire political advertising campaign, the source of the funds used and other information to ensure the fairness of the dissemination of the political advertisement. Information on the source of the funds used concerns for instance its public or private origin, and whether it originates from inside or outside the Union. Information concerning linked elections or referendums should include, when possible, a link to information from official sources regarding the organisation and modalities for participation or for promoting participation in those elections or referendums. Where a political advertisement is republished after it has been suspended or discontinued due to an infringement of this Regulation, transparency notices should state so in order to ensure that individuals are made appropriately aware. The transparency notice should be available immediately when the advertisement is published or disseminated, and the information it contains should be kept up to date. Furthermore, the transparency notice should include information on how to notify political advertisements in accordance with the mechanisms established in this Regulation. That requirement should be without prejudice to the provisions on notification laid down in Regulation (EU) 2022/2065.

(58) In order to ensure increased transparency of political advertising, it is necessary to collect and present in the relevant transparency notice information on the reach of political advertising, and individuals’ engagement with it. The reach of the message relates to data which enables quantifying geographical distribution and number of individuals who viewed, received or otherwise interacted with the political advertising, including the number of views, impressions and clicks. Engagement with the message relates to data which enables quantifying the interactions of individuals with online political advertising, measured by various means, including the period of interaction with the political advertisement. Relevant standards for the preparation of labelling and transparency notices of political advertisements should address the quantification of reach and engagement.

(59) The presentation of the information in the transparency notice can vary depending on the means used. In order to easily retrieve the information in the transparency notice in offline advertisement, use could be made for instance of a dedicated webpage link, a Quick Response code (or ‘QR code’), or equivalent user-friendly technical measures. The requirement that the information about the transparency notice is to be, inter alia, clearly visible should entail that it features prominently in or with the advertisement. The requirement that information published in the transparency notice is to be easily accessible, machine-readable where technically possible, and user friendly should entail that it addresses the needs of people with disabilities by complying with applicable accessibility requirements, including, when technically feasible, by making the information available via more than one sensory channel. To be able to take into account the latest technological and market developments, relevant scientific research and best practices and to ensure that the transparency notices are adapted to the medium used, implementing powers should be conferred on the Commission to adopt implementing acts establishing their format and providing technical specifications.

(60) It is necessary that, where political advertising is made available electronically, including through an online medium, the accompanying transparency notice should also be available electronically and in a machine-readable format. Political advertising which is made available only through an offline medium, such as printed leaflets or print newspapers, can be accompanied by transparency notices which are also made available only through an offline medium, included in the same printed leaflet or newspaper. However, where political advertising is made available through an offline medium and the transparency notice is made available electronically, the transparency notice should also be in a machine-readable format.

(61) Information should be considered machine-readable if it is provided in a format that software applications can automatically process, without human intervention, in particular for the purpose of identifying, recognising and extracting specific data from it.

(62) Transparency notices should be designed to raise user awareness and help the clear identification of the political advertisement as such. They should be designed to remain in place or remain accessible in the event that a political advertisement is further disseminated, for instance by being posted on another platform or forwarded between individuals. The information included in the transparency notice should be published when the publication of the political advertisements starts and remain so until the end of its publication. Political advertising publishers should retain and make available upon request their transparency notices together with any modification for a period of seven years after the last publication.

(63) Since political advertising publishers make political advertisements available to the public, they should publish or disseminate the information included in the transparency notice to the public together with the publication or dissemination of the political advertisement. Where the political advertising publisher becomes aware by any means that a political advertisement does not fulfil the transparency requirements under this Regulation, for instance following an individual notification, it should make best efforts to complete or correct the information required under this Regulation. When the information cannot be completed or corrected without undue delay, political advertising publishers should not make available, or should discontinue the publication or dissemination to the public of, the political advertisement that does not fulfil the transparency requirements under this Regulation. In such situations, political advertising publishers should inform the providers of political advertising services concerned, and, where relevant, the sponsor, of the reasonable steps taken to fulfil the requirements under this Regulation. The publisher should inform the sponsor, or the service provider acting on behalf of the sponsor, about any decision taken in this regard.

(64) To ensure the publication of the information about online political advertising required under this Regulation, and effective access to it by all interested individuals, it is necessary that the Commission should establish and ensure, directly or by entrusting this responsibility to a management authority, the management of a public repository for all online political advertisements, the European repository for online political advertisements. Any delegation to a management authority should be subject to the necessary regulatory adaptations. To support access to information by individuals, including to facilitate the work of interested actors, such as researchers in their specific role, and to support free and fair elections or referendums and fair electoral campaigns, including by scrutinising the sponsors of political advertisement and analysing the political advertisement landscape, that repository should comprise a functionality enabling access to online political advertising, together with the information required under this Regulation, for a defined period via a single portal. To support political advertising publishers which are not very large online platforms or very large online search engines within the meaning of Regulation (EU) 2022/2065, that repository should comprise a hosting service that ensures the availability of the online political advertising and the information published with it free of charge. Those political advertising publishers should make available the necessary information within a specified period. Political advertising publishers and sponsors should remain responsible as regards the political advertisements and other information made available through the European repository for online political advertisements, including for their completeness and accuracy and for ensuring that they remain up to date.

To ensure the effective functioning of the European repository for online political advertisements, implementing powers should be conferred on the Commission to adopt implementing acts to set out detailed arrangements for the operation of that repository. Those implementing acts should relate inter alia to a common data structure and application programming interface in order to enable the transmission of necessary information as well as its retrieval from the repository, metadata in order to facilitate the indexation of political advertisements by online search engines and their inclusion in the repository and standardised authentication solutions in order to allow transparency information to be linked to the political advertisements as well as to authenticate versions of the information.

(65) When complying with their obligations under this Regulation, providers of political advertising services should pay due regard to fundamental rights, and other rights and legitimate interests. Providers of political advertising services should in particular pay due regard to freedom of expression and information, including media freedom and pluralism.

(66) In addition, political advertising publishers which are very large online platforms or very large online search engines within the meaning of Regulation (EU) 2022/2065, should ensure that for each political advertisement, the information contained in the transparency notice is made available in the repositories of advertisements referred to in Article 39 of that Regulation, and accessible through the European repository for online political advertisements. Such information should be made available as from the moment of publication and kept updated and provided according to an agreed industry standard for accessibility, data structure and access by means of a common publicly available application programming interface.

(67) Where the provider of the political advertising service which hosts or otherwise stores and provides the content of a political advertisement is separate from the provider of the political advertising service which controls the website or other interface which eventually presents the political advertisement, those providers should be considered together as political advertising publishers, with responsibility in respect of the specific service they provide, to ensure that labelling is provided and that the transparency notice and relevant information is available. Their contractual arrangements should enable compliance with this Regulation.

(68) Information about the amounts and the value of other benefits received in part or full exchange for political advertising services can usefully contribute to the political debate. It is necessary to ensure that an appropriate overview of political advertising activity can be obtained from the annual reports prepared by relevant political advertising publishers. To support oversight and accountability, such reporting should include information about expenditure on the targeting or delivery of political advertising in the relevant period, aggregated to campaign, and including as relevant information transmitted to the political advertising publishers by other entities. To avoid disproportionate burdens, those transparency reporting obligations should not apply to micro, small or medium-sized undertakings qualifying under Article 3(1), (2) and (3) of Directive 2013/34/EU.

(69) Political advertising publishers providing political advertising services should put in place mechanisms to enable natural or legal persons to report to them that a particular political advertisement which they have published does not comply with this Regulation. Civil society organisations, human rights and watchdog organisations, journalists and other interested entities have a crucial role to play in that regard. The mechanisms to report such an advertisement should be easy to access and use, and should be adapted to the form of advertising distributed by the political advertising publisher. As far as possible, those mechanisms should be accessible from the advertisement itself, for instance on the political advertising publisher’s website. Where necessary, political advertising publishers should put in place technical measures for ensuring minimum information technology security standards, including measures to prevent automated notifications. Political advertising publishers should be able to rely on existing mechanisms, where appropriate. For instance, where political advertising publishers are online hosting services providers within the meaning of Regulation (EU) 2022/2065, with regard to the political advertisements hosted at the request of the recipients of their services, political advertising publishers should be able to rely on the notice and action mechanisms pursuant to that Regulation for notifications concerning non-compliance of such advertisements with this Regulation. Where those mechanisms are not available, individuals should be able to report such political advertisement directly to the competent authorities.

(70) In the interests of a consistent implementation of mechanisms to enable the notification of potentially non-compliant political advertising, the Commission should prepare guidelines, in particular to support the preparation of suitable technical specifications for the mechanisms, adapted for audiovisual and printed media as well as online and offline advertising.

(71) Political advertising publishers should examine and address the notifications received pursuant to this Regulation in a diligent, non-arbitrary and objective manner, as specified herein. The political advertising publisher should confirm receipt of the notification and inform, as appropriate, the natural or legal person that made the notification of the follow up given to it and provide information on the possibilities for redress, including, where applicable, those under Directive (EU) 2020/1828 of the European Parliament and of the Council (9), in respect of the advertisement to which the notification relates. To ensure that affected sponsors and providers of political advertising services are aware of the impact of notifications, the political advertising publisher should also inform the sponsors or providers of political advertising services concerned of any relevant measures they take following notifications. To ensure the effective operation of those mechanisms in the last month preceding an election or a referendum, which is particularly sensitive, political advertising publishers which do not qualify as micro, small or medium-sized undertakings under Article 3(1), (2) and (3) of Directive 2013/34/EU should process notifications that they receive about an advertisement linked to that election or referendum within 48 hours, provided that the notification can be processed completely on the basis of the information included in the notification.

(72) Any action taken by a political advertising publisher should be strictly targeted, in the sense that it should first and foremost serve to correct or complete the required information and only as a last resort, to remove the specific items of information not complying with this Regulation. In doing so, the political advertising publisher should have due regard for freedom of expression and information, and other fundamental rights.

(73) In order to allow certain entities to play their role in democracies, it is appropriate to lay down rules on the transmission of information published with the political advertisement or contained in the transparency notice to interested actors, such as vetted researchers, journalists, civil society organisations and recognised election observers, in order to support the performance of their respective roles in the democratic process. Providers of political advertising services should not be required to respond to requests which are unclear, excessive or concerning information not within their possession. Furthermore, the relevant provider of political advertising services should be allowed to charge a reasonable fee in case of significant costs, taking into account the administrative costs of providing the information.

(74) Personal data collected directly from individuals, or indirectly such as observed or inferred data, when grouping individuals according to their assumed interests or derived through their online activity, behavioural profiling and other analysis techniques, are increasingly used to target political messages to groups or individual voters or individuals, and to amplify their impact. On the basis of the processing of personal data, in particular special categories of personal data under Regulations (EU) 2016/679 and (EU) 2018/1725, different groups of voters or individuals can be segmented and their characteristics or vulnerabilities exploited, for instance by disseminating the advertisements at specific moments and in specific places, designed to take advantage of the instances where they would be sensitive to a certain kind of information or a message. Such processing of personal data has specific and detrimental effects on individuals’ fundamental rights and freedoms, such as to be treated fairly and equally, not to be manipulated, to receive objective information, to form their opinion, to make political decisions and exercise their voting rights. Furthermore, it negatively impacts the democratic process as it leads to fragmentation of the public debate about important societal issues, selective outreach and, ultimately, the manipulation of the electorate. It also increases the risk of the spreading of information manipulation and foreign interference. Misleading or surreptitious political advertising is a risk because it influences the core mechanisms that enable the functioning of our democratic society. Additional restrictions and conditions compared to those laid down in Regulations (EU) 2016/679 and (EU) 2018/1725 should be provided for. The requirements set out in this Regulation on the use of targeting techniques and ad-delivery techniques involving the processing of personal data in the context of political advertising should be based on Article 16 TFEU.

(75) In accordance with Union law, controllers, as defined in Article 4, point 7, of Regulation (EU) 2016/679, should ensure that individual decision-making is not affected by dark patterns which materially distort or impair, either on purpose or in effect, the autonomous and informed decision-making of the individuals, including through the use of pre-ticked boxes and other biased and non-transparent techniques which drive or prompt individuals to make particular decisions which they might otherwise not have made. The systematic use of dark patterns, unclear consent agreements, misleading information, and insufficient time to read terms and conditions are common practices to make it difficult for individuals to have clear information and control in the context of the online advertising industry. Rules preventing dark patterns should not be understood as preventing controllers from interacting directly with individuals. However, controllers should refrain from repeatedly requesting an individual to make a choice where such a choice has already been made, from making the withdrawal of consent significantly more cumbersome than giving it, from making certain choices more difficult or time-consuming than others or from using default settings that are very difficult to change and which unreasonably bias the decision-making of the individuals in a way that distorts and impairs their autonomy, decision-making and choice. The mechanism for obtaining decisions from individuals should be clear and easy to use, and the relative prominence of the alternatives should not seek to influence the individual’s decision. Information provided to individuals in this regard should be succinct and drafted in plain and intelligible language and made easily, prominently and directly available.

(76) Political advertising publishers which are providers or users of ad-delivery techniques should be encouraged to provide solutions which minimise the possibility of discrimination in the delivery of political advertisement based on processing of personal data.

(77) Targeting techniques and ad-delivery techniques involving profiling using special categories of personal data referred to in Regulations (EU) 2016/679 and (EU) 2018/1725 should be prohibited in the context of online political advertising. It should not be possible to rely on the exceptions laid down in Article 9(2) of Regulation (EU) 2016/679 and Article 10(2) of Regulation (EU) 2018/1725 for using those techniques in the context of online political advertising. The use of targeting techniques and ad-delivery techniques involving the processing of personal data, other than special categories of personal data, in the context of online political advertising should only be permitted when it is based on personal data collected from the data subjects and with their explicit consent, provided separately for the purposes of political advertising. Acknowledging the role of political parties, foundations, associations or any other non-profit bodies in our democracy, such restrictions should not affect their ability to communicate with their members and former members and to disseminate information, such as newsletters, linked to their political activities, when solely based on subscription data and based on personal data provided by them. Regulations (EU) 2016/679 and (EU) 2018/1725 apply to the processing of personal data and explicit consent should be understood as consent within the meaning of those Regulations. Targeting techniques and ad-delivery techniques, when used under the conditions set out in this Regulation, can be useful in disseminating political advertising and information and in reaching out to and informing citizens.

(78) Data controllers should not use personal data obtained from third parties for the purposes of targeting or ad delivery of political advertising. To help prevent manipulative microtargeting, it is essential that providers of political advertising services take specific measures to ensure that the personal data which is collected and processed for the purpose of targeting and ad delivery of political advertising is limited to what is necessary in relation to that purpose, for instance by restricting the availability of options for targeting and ad delivery of political advertising offered to service recipients to those which require only the combination of up to five categories.

(79) The requirement that the targeting or ad delivery of political advertising is not to be based on profiling using special categories of personal data encompasses profiling using special categories of personal data evaluated from personal data which are not themselves special categories of personal data. This could be the case, for instance, if a data controller uses personal data which are not special categories of personal data to categorise data subjects as having certain religious, philosophical or political beliefs, and regardless of whether that categorisation is true. It should not matter how the category is labelled if the processing of personal data reveals a special category of personal data. Where the user of an online social network visits a particular page or uses an app or other online function or service to which one or more of the categories referred to in Article 9(1) of Regulation (EU) 2016/679 relate and, as the case may be, provides personal data when registering, placing an online order or otherwise interacting with the social network, the processing of personal data by the operator of that online social network should be regarded as ‘processing of special categories of personal data’ within the meaning of that Article, which is in principle prohibited, where that data processing allows information falling within one of those categories to be revealed, irrespective of whether that information concerns a user of that social network or any other natural person. This is the case regardless of whether the data subject was made aware of the intention to use such data for the purpose of targeting or ad delivery of political advertisements at the time that it was collected.

(80) Consent to processing of personal data is given and withdrawn in accordance with Regulations (EU) 2016/679 and (EU) 2018/1725. Such consent should be given by a clear affirmative action or statement establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data for the purpose of political advertising. In addition, for the purposes of this Regulation consent should be explicit and given separately for political advertising purposes. For the purposes of this Regulation, including in particular where consent to the processing of personal data to target or deliver political advertisements is obtained during the provision of an online service, consent should be obtained by controllers by presenting a user-friendly solution to the data subject to provide, modify or withdraw consent in an explicit, clear and straightforward manner. Controllers should not design, organise and operate interfaces in a way that deceives, manipulates or otherwise materially distorts or impairs the ability of the data subject to freely give consent for that specific purpose. For the purposes of this Regulation, the requirement to obtain consent to the processing of personal data cannot be avoided by establishing that the personal data in question was made accessible to the general public by the data subject. It should be as easy to withdraw consent to the processing of personal data to target or deliver political advertising as to give it. Refusing to give consent or withdrawing consent should not be more difficult or time-consuming to the data subject than giving consent. Electronic signals signifying individual’s wish not to receive political advertising should be respected.

(81) In light of the judgment of the Court of Justice of 4 July 2023 in Case C-252/21 (10), Meta Platforms and Others (Conditions générales d’utilisation d’un réseau social), data subjects should be free to refuse, in the context of the political advertising, to give their consent to particular data processing operations, without being obliged to refrain entirely from receiving access to an online service. As held by the Court of Justice, those users should be offered an equivalent alternative not accompanied by such data processing operations.

(82) Very young people constitute a particularly vulnerable group which can be exploited through the misuse of targeting techniques and ad-delivery techniques. While not yet entitled to vote, such individuals can be targeted specifically in order to manipulate the debate. Targeting techniques or ad-delivery techniques that involve the processing of personal data of a subject that is known with reasonable certainty to be at least one year under the voting age established by national rules, in the context of political advertising, should therefore be prohibited.

(83) In order to ensure enhanced transparency and accountability, when making use of targeting techniques and ad-delivery techniques in the context of online political advertising involving the processing of personal data, controllers should implement additional transparency requirements. Such requirements should include, inter alia, the adoption of a policy describing the use of such techniques and main parameters, keeping records of their use, carrying out an annual risk assessment of the use of those techniques on the fundamental rights and freedoms and providing, together with an indication that an advertisement is a political advertisement, of additional information necessary to allow the individual concerned to understand the logic involved.

(84) The transparency and accountability requirements should apply to all controllers irrespective of whether the controller acts in his or her own capacity, acts jointly with the provider of political advertising services or is the same entity as the political advertising publisher. In cases where the controller is different from the political advertising publisher, the controller should transmit to the political advertising publisher the internal policy and ensure that other information necessary to comply with this Regulation is communicated to the political advertising publisher in a timely and accurate manner.

(85) Providers of political advertising services should transmit to the political advertising publishers the information necessary to comply with their obligations under this Regulation. The transmission of such information could be automated and integrated in the ordinary business processes on the basis of standards.

(86) In order to further empower individuals to exercise their data protection rights, political advertising publishers should provide additional information and effective tools to the data subjects concerned to support the exercise of their rights under the Union data protection legal framework, including the right to amend their personal data or withdraw their consent when targeted with a political advertisement. That information should also be easily accessible directly from the transparency notice. The tools made available to the individuals to support the exercise of their rights should be effective for the purpose of preventing an individual from being targeted with political advertisements, as well as preventing targeting on the basis of specific criteria and by one or several specific controllers.

(87) Information to be provided in accordance with all requirements applicable to the use of targeting techniques and ad-delivery techniques under this Regulation should be presented in a format which is easily accessible, clearly visible, user-friendly, including through the use of plain language, and accessible for persons with disabilities.

(88) It is appropriate to lay down rules for the transmission of information on targeting and ad delivery to other interested entities. The applicable regime should be consistent with the regime for the transmission of information linked to the transparency requirements.

(89) Providers of political advertising services established in a third country that offer services in the Union should designate a mandated legal representative in the Union that is registered with the competent authority designated by each Member State, in order to allow for the effective oversight of this Regulation in relation to those providers. The legal representative could be the representative designated on the basis of Article 27 of Regulation (EU) 2016/679 or the legal representative designated on the basis of Article 13 of Regulation (EU) 2022/2065. Member States should keep a publicly available register of all legal representatives registered on their territory pursuant to this Regulation, and the Commission should set up and maintain a publicly available portal linked to the websites provided by Member States. Given the importance of that requirement for the effective enforcement of this Regulation in relation to providers of political advertising services established in a third country, as well as for maintaining a level playing field for all providers of political advertising services in the internal market, in the absence of a designated legal representative, Member States should take any appropriate measures to ensure compliance with this Regulation, including by discontinuing the publication or dissemination of the relevant political advertisements when compliance cannot be otherwise ensured.

(90) For the purpose of the effective supervision of this Regulation, it is necessary to entrust oversight authorities with the competence to monitor and enforce the relevant rules and ensure that they have the necessary means to carry out their tasks under this Regulation. Depending on the legal system of each Member State and in line with existing Union law, including Regulations (EU) 2016/679 and (EU) 2022/2065, different national judicial or administrative authorities may be designated for that purpose.

(91) As regards the supervision of online intermediary services under this Regulation, Member States should designate competent authorities for that purpose and ensure that such supervision is coherent with that of the competent authorities designated pursuant to Article 49 of Regulation (EU) 2022/2065. Digital Services Coordinators, designated pursuant to that Regulation, in each Member State should in any event be responsible for ensuring coordination at national level in respect of those matters and engage, where necessary, in cross-border cooperation with other Digital Services Coordinators following the mechanisms laid down in that Regulation. In application of this Regulation, that mechanism should be limited to the national cooperation across Digital Services Coordinators and should not include the escalation to the Union level as provided for by Regulation (EU) 2022/2065. To the extent that the Commission has exclusive competence to supervise and enforce the compliance of very large online platforms and of very large online search engines within the meaning of Regulation (EU) 2022/2065 with the obligations laid down in that Regulation, the Commission should assess compliance of those actors with their obligations concerning the European repository for online political advertisements.

(92) For the oversight of those aspects of this Regulation that do not fall within the competence of the supervisory authorities under Regulations (EU) 2016/679 and (EU) 2018/1725, Member States should designate competent authorities to supervise and enforce relevant rules. To support the upholding of fundamental rights and freedoms, the rule of law, democratic principles and public confidence in the oversight of political advertising it is necessary that such authorities be impartial, structurally independent from external intervention or political pressure and appropriately empowered to effectively monitor and take the measures necessary to ensure compliance with this Regulation, in particular with its labelling and transparency requirements. While Member States can designate, in particular, the national regulatory authorities or bodies under Article 30 of Directive 2010/13/EU of the European Parliament and of the Council (11), they could also designate other authorities, such as election or judicial authorities.

(93) In order to support the supervisory authorities with their tasks, the Commission should request the European Data Protection Board to issue guidelines addressed to the supervisory authorities referred to in Article 51 of Regulation (EU) 2016/679 on the processing of special categories of personal data to target or deliver political advertisements, including on the conditions to obtain consent for the purpose of targeting or delivering of political advertisements and the cooperation between such authorities and other authorities responsible for the application and enforcement of the requirements laid down in this Regulation.

(94) Independent supervisory authorities under Regulation (EU) 2016/679 should be supported to make full use of their powers under that Regulation to supervise the protection of personal data provided under this Regulation, including under the cooperation procedure, consistency mechanism and, in particular, the urgency procedure. The period preceding elections or referendums is particularly important in political campaigning, in influencing citizens to form political opinions and exercise their voting rights. It is also particularly sensitive to infringements of applicable rules, because in order to be effective, remedial action will usually need to be in place before the electoral event. That is why infringements of the rules applicable to the processing of personal data for targeting political advertising in that period are liable to have particularly significant negative effects on citizens’ rights, including their freedom to form opinions without undue inference and freedom of information. In the interests of ensuring prompt action to protect the rights and freedoms of individuals during the critical period before voting occurs in the course of an election, data protection authorities should ensure that they are able to act promptly to enforce the rights of the concerned data subjects. To that end, data protection authorities should make use of the range of tools provided for in Regulation (EU) 2016/679 to cooperate and assist each other, including as the case may be the urgency procedure laid down in Article 66 of that Regulation.

(95) While competent authorities responsible for the application of this Regulation are not to depart from the decisions taken by the supervisory authorities responsible for the application of Regulation (EU) 2016/679, referred to in Article 51 of that Regulation, those competent authorities may need to assess whether political advertising complies with that Regulation for the purposes of this Regulation. Pursuant to Article 4(3) TEU, those competent authorities and those supervisory authorities are to cooperate sincerely with each other and observe their respective powers and competences, in order to ensure the consistency of application of both Regulations.

(96) Where rules already exist under Union law regarding the provision of information to competent authorities and cooperation with and between those authorities such as Article 9 of Regulation (EU) 2022/2065 or those laid down in Regulation (EU) 2016/679, those rules should apply mutatis mutandis to the relevant provisions of this Regulation.

(97) To support the effective application, supervision and enforcement of the provisions of this Regulation, and without prejudice to Regulations (EU) 2016/679, (EU) 2018/1725 and (EU) 2022/2065, it is necessary to establish which competent authority should be responsible where political advertising services are provided in more than one Member State, or where the provider of political advertising services conducts its main activities outside the Member State where its main establishment or designated legal representative is located. Where a service provider is providing political advertising services in more than one Member State, the competent authority or authorities of the Member State where the main establishment of the provider of political advertising services is located should normally be responsible for the effective application, supervision and enforcement of the provisions of this Regulation. In determining where a provider of political advertising services has its main establishment, the competent authorities should consider where that provider has its head office or registered office within which the principal financial functions and operational control are exercised.

(98) In carrying out their supervisory and enforcement powers, the competent authorities of all Member States should cooperate with and assist each other as necessary. If a suspected infringement of this Regulation only involves the competent authority or authorities where the provider of political advertising services does not have its main establishment, the relevant competent authority or authorities should notify the competent authority of the main establishment, which should assess the matter accordingly and, as applicable, take the necessary investigatory and enforcement measures.

(99) To further facilitate effective application and enforcement of this Regulation in the case of the provision of cross-border services, where the investigation of an alleged infringement of this Regulation concerns the provision of political advertising services in one or more Member States in which the provider does not have its main establishment, it should be possible for the competent authority of the main establishment to launch and lead a joint investigation with the participation of the competent authority or authorities concerned.

(100) Authorities competent for the oversight of this Regulation should cooperate with each other both at Union and at national level making best use of existing structures, including national cooperation networks, the European Cooperation Network on Elections as referred to in the recommendation of the Commission of 12 September 2018 on election cooperation networks, online transparency, protection against cybersecurity incidents and fighting disinformation campaigns in the context of elections to the European Parliament, the European Board for Digital Services as established under Regulation (EU) 2022/2065 and the European Regulators Group for Audiovisual Media Services established under Directive 2010/13/EU, as appropriate. Such cooperation should facilitate the swift and secure exchange of information on issues connected to the exercise of their supervisory and enforcement tasks pursuant to this Regulation, including by jointly identifying infringements, sharing findings and expertise, and liaising on the application and enforcement of relevant rules.

(101) For the purpose of ensuring effective and structured cooperation among all competent authorities on all aspects of this Regulation, national contact points designated by Members States should meet periodically at Union level in the Network of national contact points. In order to strengthen the cooperation and exchange of information and practices at Union level, that Network should work in close cooperation with the European Cooperation Network on Elections, the European Regulators Group for Audiovisual Media Services, and other relevant networks or bodies.

(102) With a view to facilitating the effective application of the obligations laid down in this Regulation, it is necessary to empower national authorities to request from the providers of political advertising services the relevant information on the transparency of political advertisement. Information to be transmitted to competent authorities could concern an advertising campaign, be aggregated by years or concern specific advertisements. In order to ensure that the requests for such information can be complied with in an effective and efficient manner, and at the same time that the providers of political advertising services are not subject to any disproportionate burdens, it is necessary to set certain conditions for such requests. In the interest of the timely oversight of an election process in particular, providers of political advertising services should quickly respond to requests from competent authorities, and within a specified period. During the last month preceding an election or referendum, an infringement of those obligations should be considered as negatively and severely affecting individuals’ rights and, therefore, providers of political advertising services should provide the requested information within a shorter specified period. Providers of political advertising services qualifying as micro and small undertakings under Article 3 (1) and (2) of Directive 2013/34/EU should provide the requested information without undue delay and where possible before the date of the election or referendum. In the interest of legal certainty and in compliance with the rights of defence, requests to provide information from a competent authority should contain an adequate statement of reasons and information about available redress.

Such a statement of reasons might not be required where disclosing the reasons for requesting information would clearly jeopardise the prevention, detection, investigation and prosecution of criminal offences or of serious administrative offences. The seriousness of an administrative offence warranting such an exception should be determined not only by taking into account the amount of the fine or penalty that may be imposed under this Regulation, but also the negative impacts it could have on an election or referendum, a legislative or regulatory process. Providers of political advertising services should designate contact points for the interaction with the competent authorities. Such contact points could be electronic. It follows from the settled case-law of the Court of Justice of the European Union that the protection of persons, both natural and legal, against arbitrary or disproportionate intervention by the public authorities in the sphere of those persons’ private activities constitutes a general principle of Union law. That protection may be relied on by a person as a right guaranteed by Union law, for the purposes of the first paragraph of Article 47 of the Charter, in order to challenge before a court an act adversely affecting that person, such as an order to provide information or a penalty imposed on the ground of non-compliance with that order.

(103) Member States should designate a competent authority as a national contact point at Union level for the purpose of this Regulation. The contact point should, if possible, be a member of the European Cooperation Network on Elections. The national contact point should facilitate cooperation among competent authorities between Member States in their supervision and enforcement tasks, in particular by intermediating with the national contact points in other Member States and with other competent authorities in its own Member State.

(104) Member States authorities should ensure that infringements by sponsors or providers of political advertising services of the obligations laid down in this Regulation are sanctioned by fines or financial penalties or, as appropriate, other measures, including periodic penalty payments. When doing so, they should take into account the nature, gravity, recurrence and duration of the infringement in view of the public interest at stake, the scope and kind of activities carried out, as well as, where applicable, the size and the economic capacity of the infringer. Furthermore, the Member State authorities should take into account whether the sponsor or provider of political advertising services concerned systematically or recurrently fails to comply with those obligations, including by delaying the provision of information to interested entities, as well as, where relevant, whether the provider of political advertising services is active in several Member States. Sanctions should in each individual case be effective, proportionate and dissuasive, with due regard to the provision of sufficient and accessible procedural safeguards, and in particular the need to ensure that the political debate remains open and accessible. Certain obligations play a crucial role for the effective pursuit of the objectives of this Regulation and infringements of those obligations should be regarded as particularly serious.

(105) It should be possible for individuals or entities to bring complaints to competent authorities to notify them of circumstances which might amount to an infringement of this Regulation. It should be recalled that other administrative procedures provided for under Union law might also be applicable in this context. For example, data subjects have a right to lodge complaints with supervisory authorities designated under Regulation (EU) 2016/679 for infringements concerning the processing of their personal data. Moreover, it is also possible for individuals or entities to complain to the Digital Services Coordinators designated under Regulation (EU) 2022/2065 against providers of intermediary services about alleged infringements of that Regulation. Without prejudice to those procedures or any other available administrative procedure or judicial remedy, competent authorities should address such complaints, including by informing the complainant of the follow-up given to it. When a competent authority is notified of a complaint falling under the competence of a competent authority in another Member State, it should transmit the compliant to that competent authority without undue delay.

(106) The exercise by the competent authorities of their powers under this Regulation should be subject to appropriate procedural safeguards in accordance with Union and national law, including effective judicial remedies and due process.

(107) In order to support their compliance with this Regulation, service providers and other interested entities should be provided with timely and easily accessible information about the dates of elections and referendums. Member States should therefore publish the dates of their elections and referendums, and, where applicable the dates of their electoral periods. That information should be easily accessible and timely. They should also provide that information to the public through a portal made available by the Commission, immediately after the announcement of those dates.

(108) In order to support the effective implementation of this Regulation by national competent authorities, the Commission is encouraged to draw up guidelines, as necessary, on the identification of political advertising and on the application of sanctions.

(109) In order to achieve the objectives of this Regulation, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the information to be included in the transparency notice and in respect of the information about the use of targeting techniques and ad-delivery techniques. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 (12) on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(110) In order to ensure uniform conditions for the implementation of this Regulation implementing powers should be conferred on the Commission, as specified herein. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (13).

(111) Within two years of each election to the European Parliament, the Commission should submit a public report on the evaluation and review of this Regulation. In preparing that report the Commission should also take into account the implementation of this Regulation in the context of other elections and referendums taking place in the Union.

(112) Since the objectives of this Regulation, namely the contribution to the proper functioning of the internal market for political advertising and related services and the establishment of rules on the use of targeting techniques and ad-delivery techniques in the context of the publication and dissemination of political advertising, cannot be sufficiently achieved by the Member States, but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(113) This Regulation is without prejudice to the rules laid down by Directives 2000/31/EC (14), 2002/58/EC (15), 2005/29/EC (16), 2006/114/EC (17), 2006/123/EC (18), 2010/13/EU and 2011/83/EU (19) and Regulation (EU) 2019/1150 of the European Parliament and of the Council (20) as well as Regulation (EU) 2022/2065, including the liability rules for intermediary service providers laid down in Articles 4, 5, 6 and 8 of that Regulation. This Regulation should complement the Union data protection acquis, in particular Regulations (EU) 2016/679 and (EU) 2018/1725 and Directive 2002/58/EC.

(114) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on 20 January 2022 (21),