Case C-724/25 P: Appeal brought on 13 November 2025 by Zalando SE against the judgment of the General Court (Seventh Chamber, Extended Composition) of 3 September 2025 in Case T-348/23, Zalando v European Commission
Date: 2025-11-13
Institutions: Court of Justice
Subjects: digital single market, dissemination of information, electronic commerce, on line data service, principle of legal certainty, proof, provision of services, rights of the defence, rule of law, service








C_202600161EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2026/161


12.1.2026






Appeal brought on 13 November 2025 by Zalando SE against the judgment of the General Court (Seventh Chamber, Extended Composition) of 3 September 2025 in Case T-348/23, Zalando v European Commission


(Case C-724/25 P)

(C/2026/161)
Language of the case: German

Parties


Appellant: Zalando SE (represented by: R. Briske, K. Ewald, L. Schneider and J. Trouet, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:






–


set aside the decision of the General Court of 3 September 2025 (Case T-348/23);










–


in the alternative, set aside the decision of the General Court and refer the case back to the Court for a fresh decision in accordance with the legal opinion of the Court of Justice;










–


annul the decision of the European Commission of 25 April 2023, Ref. C(2023) 2727 final;










–


order the European Commission to pay the costs in accordance with Articles 184 and 138(1) of the Rules of Procedure of the Court of Justice.





Grounds of appeal and main arguments

The appeal is based on the following six grounds:






1.



Error of law in the interpretation of Article 3(g)(iii) and Article 3(i) of the DSA – the appellant’s service is not an online platform





The judgment misapplies Article 3(i) of Regulation (EU) 2022/2065 (1) (DSA) because it misinterprets the definitional threshold of a hosting service (Article 3(g)(iii) DSA): ‘at the request of a recipient’ requires a direct order for storage and public dissemination (Article 3(k), Recital 14 DSA). The mere partial origin of raw data from third-party sellers is not sufficient for this and is overshadowed by Zalando’s own curatorial and editorial decisions.
Partners are not ‘recipients’ of the Zalando Fashion Store within the meaning of Article 3(b) DSA. They have no direct access to the service: their interaction in the form of ‘use’ takes place exclusively via separate, partner-oriented systems. Zalando has complete editorial and operational control over the publication of content, so that there is no direct order and no immediacy of ‘dissemination to the public’. The partners do not issue any direct orders for storage and dissemination to the public.







2.



The General Court erred in law by failing to apply the case-law of the Court of Justice on the ‘active role’ to the definition of hosting services under Article 3(g)(iii) DSA.





The General Court misjudges the transferability of the ECJ case-law on the ‘active role’ to Article 3(g)(iii) DSA: The DSA adopts the terms of the E-Commerce Directive.
Thus, only neutral providers can act as intermediaries/hosting services, while an active role in shaping content excludes hosting.
Overall article onboarding even constitutes a qualified active role, meaning that the content of third-party sellers is attributable to Zalando as its own content.






3.



Error of law in the interpretation of ‘active recipient’ and unlawful presumption of exposure (Articles 3(p), 24(2), and 33(1) and (4) DSA)





Article 3(p) DSA requires actual exposure to third-party content. The General Court calculates 83 341 million ‘active recipients’ despite the lack of evidence of exposure and relies on the mere possibility of exposure. However, the DSA does not recognise any presumption rule. A blanket over-registration in dubio pro designatione is unlawful and contradicts the risk-based purpose of the DSA under Article 34 and Recital 15.






4.



Burden of proof and presentation; breach of duty of care by the Commission (Article 33(4) in conjunction with Article 24(2) DSA) and legally erroneous approval by the General Court





The judgment is legally erroneous due to a wrongful shift in the burden of proof and presentation in the context of proving the requirements for a designation decision pursuant to the first subparagraph of Article 33(4), in conjunction with Article 24(2) DSA. That is because it is the Commission, not Zalando, that must investigate and prove the factual requirements for designation.






5.



Disregard of the subject matter of the dispute (ultra petita) and violation of Zalando’s rights of defence





The General Court acted ultra petita and violated Zalando’s rights of defence under Article 47 of the Charter in conjunction with the value of the rule of law enshrined in Article 2 TEU by holding that the Commission was entitled to rely on a presumption not previously raised in the proceedings that all recipients are active recipients and to reverse the burden of proof.






6.



Violation of the principle of legal certainty





By accepting the Commission’s interpretation that divergent methods of investigation of ‘active recipients’ are permissible even without a clearly standardised methodology, the General Court violates the principle of legal certainty under EU law.


(1)  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).


ELI: http://data.europa.eu/eli/C/2026/161/oj
ISSN 1977-091X (electronic edition)