Case C-724/25 P, Zalando v Commission – who counts as a recipient?
Designation as a very large online platform depends on one number, and Zalando’s appeal is about how that number is arrived at — and whether a retailer that also hosts partners is a “platform” at all.
Facts
In February 2023 Zalando reported the average monthly active recipients of its store in the Union as 83.341 million taken as a whole, but argued that since only 37% of the gross value of goods sold came from third-party sellers under its Partner Programme — the rest being Zalando’s own retail — only 37% of that figure, some 30.836 million, were recipients of an online platform. That would have left it below the 45 million threshold in Article 33(1) of Regulation (EU) 2022/2065. The Commission counted all 83 million and, by Decision C(2023) 2727 of 25 April 2023, designated the Zalando Fashion Store a very large online platform. The General Court (Seventh Chamber, extended composition) dismissed Zalando’s action on 3 September 2025 in Case T‑348/23 (ECLI:EU:T:2025:821). Zalando appeals on six grounds.
Grounds of Appeal
According to the Official Journal notice, the appellant asks the Court to set aside the General Court’s judgment, annul the designation decision, and order the Commission to pay the costs.
1. Error of law in the interpretation of Article 3(g)(iii) and Article 3(i) of the DSA – the appellant’s service is not an online platform
The judgment misapplies Article 3(i) of Regulation (EU) 2022/2065 (DSA) because it misinterprets the definitional threshold of a hosting service (Article 3(g)(iii) DSA): ‘at the request of a recipient’ requires a direct order for storage and public dissemination (Article 3(k), Recital 14 DSA). The mere partial origin of raw data from third-party sellers is not sufficient for this and is overshadowed by Zalando’s own curatorial and editorial decisions. Partners are not ‘recipients’ of the Zalando Fashion Store within the meaning of Article 3(b) DSA. They have no direct access to the service: their interaction in the form of ‘use’ takes place exclusively via separate, partner-oriented systems. Zalando has complete editorial and operational control over the publication of content, so that there is no direct order and no immediacy of ‘dissemination to the public’. The partners do not issue any direct orders for storage and dissemination to the public.
2. The General Court erred in law by failing to apply the case-law of the Court of Justice on the ‘active role’ to the definition of hosting services under Article 3(g)(iii) DSA.
The General Court misjudges the transferability of the ECJ case-law on the ‘active role’ to Article 3(g)(iii) DSA: The DSA adopts the terms of the E-Commerce Directive. Thus, only neutral providers can act as intermediaries/hosting services, while an active role in shaping content excludes hosting. Overall article onboarding even constitutes a qualified active role, meaning that the content of third-party sellers is attributable to Zalando as its own content.
3. Error of law in the interpretation of ‘active recipient’ and unlawful presumption of exposure (Articles 3(p), 24(2), and 33(1) and (4) DSA)
Article 3(p) DSA requires actual exposure to third-party content. The General Court calculates 83 341 million ‘active recipients’ despite the lack of evidence of exposure and relies on the mere possibility of exposure. However, the DSA does not recognise any presumption rule. A blanket over-registration in dubio pro designatione is unlawful and contradicts the risk-based purpose of the DSA under Article 34 and Recital 15.
4. Burden of proof and presentation; breach of duty of care by the Commission (Article 33(4) in conjunction with Article 24(2) DSA) and legally erroneous approval by the General Court
The judgment is legally erroneous due to a wrongful shift in the burden of proof and presentation in the context of proving the requirements for a designation decision pursuant to the first subparagraph of Article 33(4), in conjunction with Article 24(2) DSA. That is because it is the Commission, not Zalando, that must investigate and prove the factual requirements for designation.
5. Disregard of the subject matter of the dispute (ultra petita) and violation of Zalando’s rights of defence
The General Court acted ultra petita and violated Zalando’s rights of defence under Article 47 of the Charter in conjunction with the value of the rule of law enshrined in Article 2 TEU by holding that the Commission was entitled to rely on a presumption not previously raised in the proceedings that all recipients are active recipients and to reverse the burden of proof.
6. Violation of the principle of legal certainty
By accepting the Commission’s interpretation that divergent methods of investigation of ‘active recipients’ are permissible even without a clearly standardised methodology, the General Court violates the principle of legal certainty under EU law.
Sources
OJ notice C/2026/161 (EUR‑Lex) · Case file on CURIA · Judgment under appeal, T‑348/23 (ECLI:EU:T:2025:821) · Regulation (EU) 2022/2065
Comment
The appeal has two layers, and the second is the one with consequences beyond Zalando. The first layer — grounds 1 and 2 — is that a retailer which curates what its partners sell is not a hosting service at all. Article 3(i) defines an online platform as a hosting service that “at the request of a recipient of the service, stores and disseminates information to the public”, and Zalando says its partners make no such request: it decides what appears, so the listings are its own content. The second ground reaches back to the “active role” case law developed under the E-Commerce Directive to say the same thing — that a provider which shapes content is not an intermediary. This is an ambitious argument, because if it succeeded every marketplace that exercises editorial control over listings would leave the DSA’s platform provisions altogether, and the Act was plainly written on the assumption that marketplaces are within them. The General Court gave it short shrift and the Court of Justice is likely to do the same.
Ground 3 is the real appeal. Article 3(p) defines an “active recipient of an online platform” as one who “has engaged with an online platform by either requesting the online platform to host information or being exposed to information hosted by the online platform and disseminated through its online interface”. The word is exposed, and Zalando’s point is that a visitor who sees only Zalando’s own stock has not been exposed to hosted information at all. The Commission’s answer, accepted by the General Court, is that on a mixed store every visitor may be exposed and that the platform, not the Commission, is placed to know which ones were. Whether that is a permissible reading of “exposed” or an inversion of the burden of proof — grounds 4 and 5 — is a question that goes to every hybrid platform: any retailer with a marketplace, any streaming service with user uploads, any app store. The Court’s answer will decide whether the 45 million count is of people who could see third-party content or people who did.
Ground 6 adds a point that may resonate with the Court. There is no standardised methodology for counting active recipients; Article 33(3) empowers the Commission to adopt one by delegated act, and it has not. Zalando says that permitting “divergent methods of investigation” in the absence of one offends legal certainty. The same absence lies behind the supervisory fee litigation, where the General Court annulled the Commission’s fee decisions against Meta and TikTok for relying on a counting method that appeared nowhere in a delegated act — now on appeal in Case C‑744/25 P. The Court of Justice will hear both, and it may find that the DSA’s numbers rest on less method than its drafters assumed.