Zalando is a very large online platform within the meaning of the DSA

 

16th september 2025

 

Richard Milchior avocat Propriété intellectuelle et industrielle  

Richard Milchior    

 

A ruling by the Court of Justice concerning Regulation 2022/2065 (known as the DSA) confirming Zalando’s designation as a “very large online platform” under Article 33. § 4 of the DSA has just been handed down (T.348/23 Zalando v Commission, 3 September 2025).

 

 

A very large online platform is defined as a platform with an average monthly number (AMN) of active recipients of the service in the Union equal to or greater than 45 million. The question was what should be taken into account when calculating the AMN.

Zalando operates an online shop where customers can purchase products sold directly by Zalando as part of its retail service, “Zalando Retail”, or by third-party sellers as part of its “Partner Programme”.

Zalando had stated that the AMO of the platform as a whole (Zalando Retail and Partner Programme) was 83.341 million and that the gross value of products sold under the Partner Programme was 37% of the total gross value of products sold by the platform. Zalando therefore estimated that the NMM of the platform represented 37% of the total amount indicated above (30.386 million), i.e. less than 45 million.

Zalando argued that in order to determine the MFN, only “recipients” should be taken into account, which excluded Zalando Retail’s direct customers from the calculation.

The contested decision of the Commission of 25 April 2023 took into account, in particular, the fact 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 exposed to information from third-party sellers. It therefore rejected any calculation based on gross sales value rather than on the number of “recipients”. The figure of 83.341 million was retained and Zalando was classified as a very large platform.

 

*The Court first had to determine the classification applicable to the Zalando platform.

This part of the judgment is perhaps where the Court’s reasoning is least clear.

It first specified that the Commission had to determine whether the platform constituted an online platform within the meaning of Article 3(i) of the DSA Regulation, which represents a specific category of hosting services that are themselves classified as intermediary services. To this end, it distinguishes between the direct sale of products, which does not fall within the scope of a hosting service, since this service only stores information from the applicant, and partners for whom the applicant uses information from third-party sellers to market products.

It also specifies that the provisions on the liability of intermediary service providers cannot be used to determine whether the platform in question was a very large online platform. In a manner that does not necessarily simplify the application of European law, the Court ruled that the concept of an intermediary service provider used to implement Article 14 of Directive 2000/31 (the e-commerce directive) cannot be used to interpret the DSA, which has its own liability regime.

The Court then noted that the platform stores and disseminates information provided by service recipients as part of the “Partner Programme” and that it has not been alleged that this is a minor and incidental feature of another service. The Court therefore held that the platform was an online platform within the meaning of Article 3(i) of the DSA, since third-party sellers market products on it and, as a result, it also constitutes an intermediary service and a hosting service within the meaning of Article 3(g)(iii) of the same regulation.

 

* Once this finding had been made, it was necessary to determine whether or not the NMM was less than 45 million.

The Court points out that an active recipient of an online platform is a recipient of the service who has been in contact with the platform, either by requesting it to host information or by being exposed to information hosted by the platform and disseminated via its online interface.

This means that this concept includes not only persons who have carried out transactions, but also those exposed to information provided by third parties, such as product names, descriptions and photographs.

Going further, the Court noted that for certain products marketed in parallel by the platform and by third-party sellers, the presentation of the products is uniform and independent of the identity of the seller. The Court concluded that consumers can view information provided by third-party sellers before deciding whether or not to purchase products offered by the platform. The consequence is that the number of assets cannot be calculated proportionally to the gross sales value generated by third parties in the case of the “Partner Programme”.

The Court then rejected the argument based on the fact that, in order to be classified as an active recipient, the person must be ‘effectively’ exposed to information and not merely exposed to it.

The Court imposes a level of proof that can be very costly for the platform and technologically difficult to implement. It states that Zalando should have identified the persons “effectively” exposed to the information, which Zalando acknowledges it cannot do. Therefore, this inability to prove “actual” exposure, which may be based on the design of the platform that existed before the DSA came into force, justifies retaining an NMM of 83.341 million, which is higher than 45 million.

 

* The Court then had to examine an objection of illegality against Article 33(1) and (4) of the Regulation, primarily for violation of the principle of legal certainty.

This argument was rejected, in particular because a certain degree of uncertainty as to the meaning and scope of the concept of active recipient of an online platform is inherent in that concept.

Zalando then argued that different online platform providers accounted for NNM differently, but this was not accepted by the Court, which preferred that the same accounting methods apply to all[1] . An interesting discussion concerned the question of the minimum length of time that the recipient of the service must remain on the platform in order to be counted as a recipient.

The Court found that Zalando had taken into account a minimum duration of 10 seconds and had not developed an argument to demonstrate that such a duration did not allow a recipient of the service to be considered as having been exposed to information from third-party sellers or had been chosen arbitrarily for the sole purpose of complying with Article 24 of the D.SA.

Another argument was based on the fact that, in order to determine the amounts to be paid by Zalando in respect of the so-called oversight fee set by Article 43 of the DSA, the Commission had considered that the NMM amounted to 47.5 million and not 83.341 million. The Court noted that, in order to set this fee, the Commission may rely either on the NMM published under Article 24 of the Regulation, i.e. 83.341 million in this case, or on any other information available on 31 August of the year for which the fee is to be paid. The Commission then determined the amount of the supervisory fee by applying identical calculation rules to all platforms([2]) .This resulted in an NMM of £47.5 million for Zalando. Even if estimates based on information provided by third parties are not necessarily as reliable as those provided by the applicant, this is not sufficient to consider that the concept of ‘active recipient of an online platform’ is not sufficiently precise under the principle of legal certainty

The fact that the DSA provides for the possibility of adopting delegated acts is not sufficient to demonstrate the ambiguity of the regulation. Indeed, this ambiguity could only arise from the fact that its application would violate the principle of legal certainty[3].

It was also argued that Article 33(1) violates the principle of equal treatment because the insufficiently precise nature of the concept of active recipient of an online platform leads platform providers and the Commission to determine the NMM differently depending on the platform concerned. In response, the Court emphasised that Zalando had not demonstrated that the details of the DSA Regulation were insufficient to determine the NMM of an online platform. Furthermore, Zalando had also failed to prove that another platform could have been designated as a very large online platform due to an ambiguity in the Regulation. Furthermore, the Court held, as a matter of course, that the argument that other platforms could potentially understate their data in order to gain a competitive advantage does not justify unequal treatment caused by the wording of Article 33 of the DSA. It added that, in such a case, fines may be imposed on entities that do not comply with the regulation.

In response to the assertion that a platform such as Zalando is potentially less dangerous than another online platform that does not sell products but disseminates ideas, the Court ruled that marketplaces such as Zalando (especially if sellers are not subject to a selection process) can facilitate the sale of dangerous or misleading products. It is irrelevant that, until now, a selection process has been adopted for third-party sellers. Marketplaces as a whole are therefore likely to disseminate illegal content through the sale of products and to have a negative effect on the fundamental right to a high level of consumer protection enshrined in Article 38 of the Charter.

With regard to the criticism that the EU legislature did not take qualitative criteria into account when designating very large online platforms, the General Court noted that the Commission had considered this in the impact assessment annexed to the proposed regulation, but had not retained it on the grounds that it would lead to a case-by-case approach that could result in legal uncertainty and a lengthy and costly process for designating very large online platforms.

In view of these various factors, the NMM criterion used to designate Zalando as a very large online platform does not appear manifestly inadequate and does not violate the principle of equal treatment.

The next argument was based on a violation of the principle of proportionality.

The NMM criterion was not appropriate for identifying the most dangerous online platforms. The applicant had noted, on the basis of transparency reports published under the DSA, that Zalando was the subject of significantly fewer notifications than the Amazon. Store during certain months of 2023. She added that, unlike Amazon, information from service recipients is checked before being made public on the Zalando platform.

The Court did not dispute this point, but noted that the platform could potentially expose a significant part of the EU population to illegal content in the future. This could happen if the NMM remains above 45 million. The Court revisits part of its previous response here, pointing out that it would have been possible for Zalando to determine its NMM by excluding recipients of the service who had not actually been exposed to information from third-party sellers.

The Court appears to offer a way forward for the future, subject to the implementation of an accurate and verifiable counting system to determine which individuals were actually exposed to information from third-party sellers. It should be noted that the author of this article does not have the technical expertise to know whether this is possible, nor the information to know with e whether modifying the platform to avoid Zalando being classified as a very large online platform would be economically viable.

However, one may question the validity of a rationale such as the one set out above, based solely on the potential risks associated with quantifying a potential number of recipients, which is difficult to quantify, as the judgment under consideration clearly shows.

The final defence invoked was insufficient reasoning in the contested decision. This defence was quickly rejected by the Court, as it considered that the Commission had clearly and unambiguously explained why it considered the Zalando platform to be an e-commerce platform and, therefore, a hosting service.

Although the appeal was therefore dismissed, given that the NMM must be communicated every six months, the story may not be over yet and Zalando may, of course, also appeal to the Court of Justice.

 

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[1]  This was confirmed a week after the Zalando judgment in two judgments of the General Court concerning Meta and TikTok (Cases T-55/24 and 7-58/24 of 10 September 2025).

[2]  See the judgments cited in note 1 on the calculation of the supervisory fee

[3]  In view of the judgments cited in note 1, which require the Commission to adopt delegated acts to determine the method of calculating the supervisory fee, one may wonder whether Zalando has no means of appealing to the Court of Justice.