62023TJ0348_RES
Case T‑348/23
Zalando SE
v
European Commission
Judgment of the General Court (Seventh Chamber, Extended Composition) of 3 September 2025
(Digital Services – Regulation (EU) 2022/2065 – Designation of a very large online platform – Plea of illegality – Article 33(1) and (4) of Regulation 2022/2065 – Legal certainty – Equal treatment – Proportionality – Obligation to state reasons)
Approximation of laws – Single market for digital services – Regulation 2022/2065 – Very large online platform – Criteria for designation – Online platform – Concept – Storage and dissemination to the public of information at the request of a recipient of the service – Scope – Active recipients of an online platform – Concept – Scope
(European Parliament and Council Regulation 2022/2065, recitals 13, 18, 19, 41 and 77 and Arts 2(1) and (2), 3(b), (g), (i) and (p), 7, 8, 24(2), 33(1) and 4; European Parliament and Council Directive 2000/31, recital 42 and Art. 14)
(see paragraphs 25-46, 60-66)
Approximation of laws – Single market for digital services – Regulation 2022/2065 – Very large online platform – Existence of different methods for calculating the average monthly number of active recipients of an online platform – Active recipient of an online platform – Concept – Requirements of clarity and precision – Breach of the principle of legal certainty – None
(European Parliament and Council Regulation 2022/2065, recitals 13 and 77 and Arts 2(1), 3(p), 24(2), 33(1), (3) and (4), and 43; Commission Regulation 2023/1127, Arts 4(1) and (2), and 6(3))
(see paragraphs 76-80, 84-101, 103, 104, 108, 110, 111, 113, 114, 117-119)
Approximation of laws – Single market for digital services – Regulation 2022/2065 – Transparency reporting obligations incumbent on online platform providers – Obligation to publish information on the monthly average number of active recipients of the service in the European Union – Additional obligations imposed on marketplace providers designated as very large online platforms – Breach of the principle of equality – None
(Charter of Fundamental Rights of the European Union, Arts 20 and 38; European Parliament and Council Regulation 2022/2065, Arts 3(h), 24(2) and (3), 33(1), and 34 to 43)
(see paragraphs 123, 124, 126, 129, 130, 135-147)
Approximation of laws – Single market for digital services – Regulation 2022/2065 – Very large online platform – Criteria for designation – Average monthly number of active recipients of an online platform – Breach of the principle of proportionality – None
(European Parliament and Council Regulation 2022/2065, Arts 24(2) and 33(1))
(see paragraphs 154-164)
Approximation of laws – Single market for digital services – Regulation 2022/2065 – Commission decision designating Zalando as a very large online platform – Breach of the obligation to state reasons – None
(Art. 296 TFEU; European Parliament and Council Regulation 2022/2065, Arts 3(g)(iii), and (i), and 24(2))
(see paragraphs 173-175)
Résumé
Dismissing the action for annulment brought by Zalando SE against the European Commission’s decision designating its platform as a very large online platform, (
1
) the General Court applies for the first time Regulation 2022/2065 on digital services. (
2
) In that context, it clarifies the scope of the criteria governing the designation of a very large online platform by clarifying the concepts of ‘online platform’ and ‘active recipient of the service’ as well as the criteria for assessing the average monthly number of such recipients (AMAR).
The applicant is a company incorporated under German law which operates an online shop, accessible in particular on the website ‘www.zalando.de’ and at the corresponding URL addresses bearing top-level domain names in other countries. Customers of that shop can purchase products which are either sold directly by the applicant through a sales service called ‘Zalando Retail’ or are sold by third-party sellers participating in the ‘Partner Programm’.
On 17 February 2023, in accordance with Article 24(2) of Regulation 2022/2065, the applicant published the AMAR for the Zalando platform, including Zalando Retail and the Partner Programm, namely 83.341 million users. However, as the gross value of the products sold under its Partner Programm corresponded to 37% of the total value of all products sold, it considered that the AMAR for that platform should be set at 37% of the total number of users, namely 30.836 million.
In the contested decision, the Commission designated the Zalando platform as a very large online platform under Article 33(4) of Regulation 2022/2065, since its AMAR amounted to 83.341 million and therefore exceeded the threshold of 45 million provided for in that article. It considered that it follows from Regulation 2022/2065 (
3
) that the concept of ‘active recipient of an online platform’ included all recipients actually using the platform in question, in particular by being exposed to information disseminated on it, and that it was not limited to those who carried out transactions on it. In the present case, the products marketed directly by the applicant were displayed alongside those marketed by third-party sellers, with no possibility of distinguishing between the two on the interface. Thus, the Commission considered that it was not possible to identify, among the recipients of the service, those who were exposed only to information relating to the applicant’s products and those who were exposed only to information relating to the products of third-party sellers.
Supported by the professional association Bundesverband E-Commerce und Versandhandel Deutschland eV (bevh), Zalando SE has brought an action with the Court for annulment of that decision.
Findings of the Court
In the first place, the Court notes that the Zalando platform is an online platform in so far as third-party sellers market products on it under the Partner Programm. It recalls that, within the meaning of Article 3(i) of Regulation 2022/2065, an online platform is a ‘a hosting service that, at the request of a recipient of the service, stores and disseminates information to the public …’. That is a subcategory of the intermediary services referred to in Article 3(g) of that regulation.
The Court finds that, under the Partner Programm, Zalando SE uses information from third-party sellers to market their products, in particular images and descriptions of those products. Although the applicant may modify their presentation or supplement them, that does not alter the fact that that information originates, at least in part, from those sellers. It is not apparent from Regulation 2022/2065, or even from Directive 2000/31 (
4
) as amended by that regulation, that the storage and dissemination of information, within the meaning of Article 3(i) of that regulation, exclude the storage and dissemination of information the presentation of which has been modified or supplemented by the provider of the online platform.
In that regard, the Court notes that the concept of ‘information’ must be understood in a broad sense in relation to hosting services within the meaning of Directive 2000/31. Accordingly, it is possible for the applicant to communicate information from third-party sellers while modifying the wording of their texts in order to bring them into line with its commercial requirements, the objective of which is limited to ‘guaranteeing a unique shopping experience that stands out from those that may be available from competitors’.
Furthermore, the Court points out that data relating to offers of products marketed by third-party sellers constitute ‘information’, as is clear from the definition of ‘illegal content’ set out in Regulation 2022/2065. It follows from that regulation (
5
) that that concept covers ‘information’ relating to the sale of products or the provision of services which are unlawful, whether that involves in particular the sale of non-conforming or counterfeit products or the sale of products or the provision of services in breach of consumer protection law. Consequently, the mere listing of a product for the purpose of marketing it is likely to constitute illegal content, particularly where that product is unlawful, and must therefore be regarded as constituting information within the meaning of that regulation. It follows that offers of products by third-party sellers under the Partner Programm must be regarded as information provided by recipients of the service within the meaning of Article 3(i) of that regulation.
The Court adds that, contrary to what the applicant maintains, the Court of Justice’s case-law relating to the exemptions from liability from which the providers of hosting services referred to in Article 14 of Directive 2000/31 could benefit does not make it possible to define the concept of ‘intermediary service’ within the meaning of Article 3(g) of Regulation 2022/2065.
Article 14 of Directive 2000/31 provides that a hosting service provider may not be liable for information stored at the request of a recipient of the service, in particular where it has no actual knowledge of the ‘illegal activity or information’.
In the judgment in L’Oréal and Others, (
6
) the Court of Justice held that, in order for an internet service provider to fall within the scope of Article 14 of Directive 2000/31, it was ‘essential that the provider be an intermediary provider within the meaning intended by the legislature in the context of Section 4 of Chapter II of that directive’. It thus ruled that an internet service provider was not such an intermediary provider when, instead of limiting itself to the neutral provision of that service by means of purely technical and automatic processing of the data provided by its customers, it played an active role such as to confer on it knowledge or control of those data. However, by limiting the scope of the concept of ‘intermediary service provider’ in that way, the Court of Justice sought to circumscribe the scope of the exemptions from liability from which the providers of the services at issue could benefit. Furthermore, the Court of Justice referred to the judgment in Google France and Google (
7
) to define the concept of ‘intermediary service provider’ within the meaning of Section 4 of Chapter II of Directive 2000/31. It follows from that judgment that the interpretation of that concept is based on recital 42 of that directive, according to which ‘the exemptions from liability established [in particular in Article 14 of that directive] cover only cases where the activity of the information society service provider is limited to the technical process of operating’, it being specified that ‘[that] activity is of a mere technical, automatic and passive nature’.
It follows that the Court of Justice’s interpretation of the concept of ‘intermediary service provider’ is limited to ‘the meaning intended by the legislature in the context of Section 4 of Chapter II of [Directive 2000/31]’ (
8
) and that that interpretation cannot be used for the purposes of applying Regulation 2022/2065, which provides for its own liability regime. That is all the more so because Article 89(1) of that regulation deleted Section 4 of Chapter II of Directive 2000/31, which was the subject of the Court of Justice’s interpretation.
Furthermore, contrary to the applicant’s assertion, the legislature did not indicate that the concept of ‘intermediary services’, which the Court of Justice had defined by referring to recital 42 of Directive 2000/31, should be maintained for the purpose of applying Regulation 2022/2065.
In the second place, the Court notes that it follows from Article 3(p) of Regulation 2022/2065 that, in order to be classified as an active recipient of an online platform, the recipient of the service must only have engaged with that platform, in particular by being exposed to the information hosted by the online platform and disseminated via its online interface. It notes that the products sold by both the applicant and third-party sellers may be presented on the same web page. It also notes that consumers are likely to view information relating to products marketed exclusively by third-party sellers before ultimately choosing to purchase another product sold directly by the applicant. In so far as the applicant submits that it was unable to distinguish, from among the 83.341 million people included for the purposes of calculating the AMAR, those who had actually been exposed to information from third-party sellers from those who had not been exposed to that information, the Court finds that the Commission was entitled to presume that all of those persons had in fact been exposed to that information.
In the third place, with regard to the argument based on the breach of the principle of legal certainty due to the imprecision of Regulation 2022/2065, on the one hand, the Court notes that Zalando SE relies on the German-language version of Article 2(1) of Regulation 2022/2065, which states that only active recipients with their ‘Sitz’ (domicile) in the European Union should be taken into account in calculating the AMAR. It points out in that regard that the wording used in one of the language versions of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given priority. It finds that it is clear from the other language versions of Article 2(1) of Regulation 2022/2065 that only the place where the recipients of the service in question are located when they are exposed to the information hosted by the online platform is relevant, regardless of where their domicile or habitual residence is located. It therefore concludes that the legislature did not need to define the concept of ‘domicile’ for the purposes of applying that provision. Furthermore, the Court finds that Zalando SE itself had correctly interpreted that provision in order to calculate the AMAR of its platform, in so far as it had taken account only of the place from which the websites and applications relating to that platform had been consulted.
On the other hand, the Court rejects Zalando SE’s argument that Regulation 2022/2065 allows the AMAR of an online platform to be underestimated, in particular when users refuse cookies or when visits are generated by robots. It considers that it follows from recital 77 of Regulation 2022/2065 that online platform providers may be led, first, to count bots when they are unable to exclude them without further processing of personal data or tracking and, secondly, to count the same active recipient several times, even though the aim is, ‘where possible’ to count them only once. By contrast, it considers that it cannot be inferred from that recital that online platform providers could, for the purposes of calculating the AMAR, disregard certain active recipients on the ground that they would refuse to use cookies and that bots should not be counted. Consequently, while those providers may, in certain circumstances, be led to overestimate the AMAR of their online platform in accordance with that regulation, it does not, however, authorise them to underestimate that number. It is up to those suppliers in particular to choose a reliable method that is likely to ensure compliance with that requirement. The fact that Article 33(1) of that regulation refers to the AMAR and not to the average monthly number of consultations of the online platform concerned is not such as to call that conclusion into question. That provision, as interpreted in the light of recital 77 of that regulation, does not lead to all of those consultations being counted, even though it may lead to an overestimate of the number of active users of the online platform concerned.
In the fourth place, the Court rejects the applicant’s argument that Article 33(1) of Regulation 2022/2065 is in breach of the principles of equal treatment and proportionality in so far as it takes account only of the AMAR for the purposes of designation as very large online platforms and not the nature of the online platforms concerned or the risks to society which they may give rise to.
First, the Court notes in that regard that Article 34(1) of Regulation 2022/2065 contains a list of systemic risks that may be caused by very large online platforms. In this case, the applicant does not dispute that marketplaces, in particular those on which sellers have not been subject to a selection process, are capable of facilitating the marketing of dangerous or illegal products. Furthermore, the fact that marketplace providers, such as the applicant, have, to date, carefully selected the sellers operating on their marketplaces is not such as to rule out the possibility that those marketplaces may, in future, permit the marketing of such products to a significant part of the EU population, provided that their AMAR remains equal to or greater than 45 million.
In those circumstances, the Court finds that marketplaces as a whole are likely to disseminate content which is unlawful in relation to the sale of products and to have an adverse effect on the fundamental right to a high level of consumer protection enshrined in Article 38 of the Charter of Fundamental Rights of the European Union. It follows that the legislature did not commit a manifest error of assessment in considering that marketplaces were likely to give rise to systemic risks within the meaning of Article 34(1) of Regulation 2022/2065. Moreover, the fact, assuming that it is established, that that provision also refers to risks which are not likely to be generated by marketplaces is not such as to establish that the latter do not generate any of the risks referred to in that provision.
Secondly, the Commission’s taking into account of the nature of online platforms and the risks to which they may give rise for the purposes of their designation as very large online platforms would make such a process long and costly. Thus, the Court observes that the ‘qualitative’ criteria relied on by the applicant were such as to delay the implementation of the obligations referred to in Article 33(1) of Regulation 2022/2065 and to deprive the Commission of some of the resources necessary to carry out the tasks entrusted to it by that regulation. Consequently, such criteria do not make it possible to achieve those objectives as effectively as the AMAR criterion.
Therefore, the AMAR criterion for the purposes of designation as a very large online platform does not appear manifestly inadequate or inappropriate for achieving the objectives of Regulation 2022/2065.
(
1
)	Commission Decision C(2023) 2727 final of 25 April 2023 (‘the contested decision’).
(
2
)	Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ 2022 L 277, p. 1).
(
3
)	Recital 77 and Article 3(b) and (p) of that regulation.
(
4
)	Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).
(
5
)	Article 3(h) of Regulation 2022/2065, as interpreted in the light of recital 12 thereof.
(
6
)	Judgment of 12 July 2011, L’Oréal and Others (C‑324/09, EU:C:2011:474, paragraphs 112 and 113).
(
7
)	Judgment of 23 March 2010, Google France and Google (C‑236/08 to C‑238/08, EU:C:2010:159, paragraphs 112 to 116).
(
8
)	Judgment of 12 July 2011, L’Oréal and Others (C‑324/09, EU:C:2011:474, paragraph 112).