In a judgment handed down on Wednesday 19 November (Case T-367/23), the General Court of the European Union dismissed Amazon’s appeal against the decision to designate the Amazon Store as a ‘very large online platform’ under the ‘DSA’ (2022/2065), the act governing digital services.
According to Amazon, the disputed provision of the ‘DSA’, which imposes transparency, cooperation and data access obligations on very large platforms, infringes certain rights guaranteed by the Charter of Fundamental Rights of the European Union, including freedom of enterprise, the right to property and freedom of expression (see EUROPE 13221/33).
In its judgment, the General Court recognises that the obligations imposed by EU law constitute an interference with the freedom to conduct a business, insofar as they may entail significant costs, affect the organisation of the service provider’s activities and require complex technical solutions. However, the General Court held that this interference did not affect the essence of the freedom to conduct a business. It believes that the EU legislator did not commit a manifest error in considering that marketplaces with more than 45 million users may present systemic risks to society, in particular by disseminating illegal content or infringing other fundamental rights such as consumer protection.
In the General Court’s view, the obligations imposed on these platforms (recommender system option without profiling, public repository of advertisements, access by researchers to certain data) are intended to prevent these risks, even if they entail a significant economic cost.
As regards the right of ownership, the General Court notes that the obligations imposed by the ‘DSA’ constitute administrative burdens which do not deprive service providers of their platforms’ ownership.
Regarding the principle of equality before the law, the General Court noted that the EU legislator has a margin of discretion to distinguish between online platforms based on their number of users. Such a distinction is neither arbitrary nor inappropriate to the objective of risk prevention, it adds.
With regard to freedom of expression, the General Court also considers that the recommender option without profiling, which may restrict the way products are presented on the marketplace, is justified because it pursues a legitimate objective of consumer protection.
Finally, with regard to respect for privacy, the General Court is of the opinion that the obligations of transparency in advertising and access for researchers to certain data are, again, justified by an objective of general interest. It also notes that the repository of advertisements and access to data are strictly regulated.
See the EU General Court’s judgment: https://aeur.eu/f/jir (Original version in French by Mathieu Bion)