In a judgment handed down on Wednesday 3 September (Case T-348/23), the General Court of the Court of Justice dismissed the action brought by the Zalando platform against its designation as a ‘very large online platform’ (‘VLOP’) under the Digital Services Act (see EUROPE 13211/44).
Zalando had argued that its designation was invalid, on the grounds that “the European Commission misinterpreted our user numbers and failed to acknowledge our mainly retail business model”, according to its co-CEO, Robert Gentz.
According to the judgment of the General Court, the platform is indeed a ‘VLOP’ within the meaning of the DSA, “in so far as third-party sellers market products there under the ‘Partner Programm’”. However, this does not apply to the direct sale of products by Zalando itself, through its company Zalando Retail.
According to the General Court, Zalando is unable to differentiate between those of its 83 million users who are exposed to its ‘Partner Programm’ and those who are not. Consequently, the General Court considers that the Commission was entitled to estimate that Zalando’s average monthly number of users was more than 83 million and not only approximately 30 million, as it claimed.
The General Court also rejects Zalando’s arguments that the DSA rules breach the principles of legal certainty, equal treatment and proportionality.
Link to the ruling: https://aeur.eu/f/i93 (Original version in French by Isalia Stieffatre)