General Court upholds Zalando DSA very large online platform designation
The General Court delivered its judgment in T-348/23, Zalando v Commission, upholding the European Commission’s designation of Zalando as a “very large online platform” under the Digital Services Act (DSA). The Commission’s April 25, 2023 decisions relied on an average monthly active recipient count exceeding 45 million in the EU, determining more than 83 million for Zalando.
The Court confirmed that Zalando qualifies as an “online platform” only insofar as it hosts third-party sellers through its Partner Programme, not with respect to Zalando Retail’s direct sales. Consequently, the relevant metric for DSA designation is the number of active recipients exposed to information from third-party sellers on the Partner Programme.
Zalando argued it could not separate users exposed to Partner Programme offers from those interacting solely with Zalando Retail, and proposed an alternative estimate of about 30 million based on gross sales value generated via the Partner Programme. The Court accepted the Commission’s approach that, absent a reliable distinction provided by Zalando, the entire base of more than 83 million active recipients could be treated as exposed to the Partner Programme.
The Court also dismissed claims that the DSA’s designation regime breaches legal certainty, equal treatment, and proportionality. Emphasizing systemic risk, it noted that marketplaces can facilitate dissemination of dangerous or illegal products at scale when their active recipients reach or exceed the 45 million threshold, justifying the enhanced obligations for very large online platforms.
