On 3 September 2025, the General Court of the European Union (the Court) delivered a judgment in Case T-348/23, Zalando SE v European Commission, dismissing the action for annulment brought by Zalando SE (Zalando) against the EU Commission’s decision designating its platform as a “Very Large Online Platform” ("VLOP") under Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market for Digital Services (the Digital Services Act). The decision, one of the earliest on the application of the rules on very large online platforms devised in the Digital Services Act, provides important clarification on key legal concepts such as the definition of an online platform and the calculation of the average number of active recipients (AMAR).
Background to the dispute
Zalando, a German online retailer selling fashion and beauty products, operates an online marketplace combining two (2) functions: (i) direct retail sales, offered by Zalando itself (“Zalando Retail”), and (ii) sales made by third-party sellers under the so-called “Partner Programme.”
In February 2023, pursuant to Article 24(2), of the Digital Services Act, Zalando published the average monthly number of active recipients (AMAR) of its services in the European Union (EU) on its website. Zalando reported that its platform had substantially more than 45 million active recipients, which is the quantitative threshold, under Article 33(1), of the Digital Services Act for possible designation as a VLOP. However, it argued that only the third-party portion of its business, the Partner Programme, should be considered for this calculation, which would have resulted in an AMAR below the threshold (approximately 30 million).
On 22 February 2023, the Commission informed Zalando of its preliminary conclusion that the platform should be designated as a VLOP because the total AMAR exceeded the 45 million threshold and that all recipients of the service ought to be taken into account, not just those exposed to third-party sellers. After receiving Zalando’s observations, on 25 April 2023, the Commission adopted Decision C (2023) 2727, formally designating the Zalando platform as a very large online platform under Article 33(4) of the Digital Services Act.
Pursuant to this, Zalando brought an action under Article 263 of the Treaty on the Functioning of the European Union (TFEU), seeking annulment of the designation decision. It relied on a range of arguments alleging misapplication of the legal framework and breach of fundamental principles of EU law.
The issues at stake
The obligations imposed by the Digital Services Act on VLOP entail significant compliance costs for providers. As such, Zalando’s challenge raised several legal issues, broadly clustered around several main pleas, aimed at proving that the Commission’s qualification was not correct. First, Zalando argued that its website should not be treated as an “online platform” for the purposes of the regulation, or at least that only the third-party marketplace component qualified, thus yielding a lower AMAR below the very large online platforms threshold.
Zalando also contended that Articles 33(1), and 33(4), read together with Article 24(2), of the Digital Services Act, were unlawful for failing to provide sufficient legal certainty on how to count active recipients (AMAR), and that the use of a quantitative threshold without accompanying delegated acts or detailed methodology undermined legal predictability and equality of treatment. Finally, the provider asserted that the Commission’s designation decision did not sufficiently explain why users of Zalando Retail should be counted as active recipients or why the platform qualified as an “online platform” under the regulation. All these issues challenged both the scope of the regime applicable to VLOP and the legitimacy and implementation of key criteria devised under the Digital Services Act.
The findings of the Court
The General Court dismissed all of Zalando’s pleas and upheld the Commission’s decision in full. The Court first confirmed that the Zalando platform falls squarely within the definition of an “online platform” under Article 3 (i) of the Digital Services Act. The Court explained that the concept of an online platform is a subcategory of hosting services, which in turn form part of the broader category of intermediary services under Article 3 (g) therein.
On this point, the Court noted that a platform intermediary does not need to be exclusively a marketplace. What matters, in this case, is that it enables recipients to conclude contracts or interact with information provided by third parties. Since Zalando’s Partner Programme allowed third parties to sell goods through the same interface accessed by consumers, the platform’s hybrid nature did not preclude it from being an online platform under the Digital Services Act.
The Court then rejected Zalando’s proposal to calculate AMAR solely on the basis of third-party sellers, holding instead that the AMAR figure must reflect the total number of active recipients exposed to the platform’s services. The judgment emphasised that Zalando had not demonstrated a reliable method for distinguishing users exposed only to third-party content from those interacting primarily with Zalando Retail. Consequently, the total AMAR reported was appropriate for determining whether the platform exceeded the DSA’s 45 million threshold.
In addressing the principle of legal certainty, the Court held that Article 24(2) of the Digital Services Act does not lack precision simply because it leaves providers with latitude to determine AMAR in light of how users interact with their services. The Court found this flexibility consistent with the DSA’s regulatory design, especially given the variety of business models and the absence of a reliable one-size-fits-all measure. The Court further rejected the notion that the absence of a detailed delegated act on AMAR methodology rendered the regime uncertain.
Zalando also contended that treating platforms with hybrid models the same as pure marketplaces was contrary to the principle of equal treatment and proportionality. The Court however disagreed, reasoning that the regulation’s purpose is to identify platforms with systemic potential to affect large numbers of users, including those combining direct sales and marketplace functions, and not to categorise platforms solely on functional distinctions. Importantly, it emphasised that AMAR is a proportionate and effective criterion for identifying systemic reach, as qualitative alternatives would require time-consuming case-by-case assessments, slowing down enforcement of the regulation’s objectives.
Finally, the Court found that the Commission had adequately stated its reasons in its designation decision, which explained that Zalando itself recognised at least part of its operations as an online platform and elaborated why all users should be counted for AMAR purposes.
The way forward
Although less politically charged than case T-367/23, Amazon EU v European Commission (see our newsletter), the Zalando judgment is highly significant in shaping enforcement of the Digital Services Act and clarifying regulatory standards for digital intermediaries. Consistently, the ruling decisively confirms AMAR as the central, quantitative trigger for the status of very large online platforms thereunder, so that providers could not escape designation simply by segmenting their platform or disputing internal functional distinctions unless they can reliably separate user exposure to third-party content. Moreover, by validating the flexibility left to providers in Article 24(2), and rejecting legal-certainty arguments tied to the absence of a delegated act, the Court also underscored the regulation’s broad, technology-neutral design. It signals that the Commission’s purpose of swift, objective identification of systemic platforms outweighs demands for overly rigid technical prescriptions.
The judgment also settles an important point, as mixed retail and marketplace platforms can fall within the highest regulatory tier of the Digital Services Act, even if their pure marketplace component is below the threshold. This point will be critical as it is predictable that several e-commerce operators will attempt to avoid the status of very large online platforms by emphasizing internal business model distinctions.
In case Zalando appealed the judgment to the Court of Justice of the European Union, it will be interesting to read the findings of EU’s supreme judiciary, particularly on the legal interpretations of AMAR and platform definition devised by the Court in the junior judgment at stake. This appeal, together with other pending cases from Meta and TikTok) on other aspects of the VLOP regime, will continue to shape how the regulation is applied to leading digital services.
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