EU General Court Issues Judgments on the Digital Services Act

The General Court of the EU recently issued three judgments on challenges made to various decisions issued by the European Commission under the EU’s Digital Service Act. Our Data & Technology team provides an overview and commentary on some of the more interesting observations made by the General Court.

The General Court issued its judgment in Case T‑348/23 on 3 September 2025. This case concerned Zalando’s challenge to its designation by the European Commission as very large online platform, or 'VLOP', under the EU’s Digital Service Act (DSA). Designation results from a platform having at least 45 million average monthly active recipients (AMARs) in the EU over the previous six months. VLOPs are subject to the most onerous obligations under the DSA.

Zalando challenged the designation on the basis that the Commission had erroneously included its retail customers in the AMARs even though it was not acting as an intermediary service in the context of those customers – the DSA only applies to intermediary services. Zalando was ultimately unsuccessful in its challenge primarily because it was unable to effectively distinguish between those users who had been exposed to information from third-party sellers and those who had not.

The General Court issued its judgments in Cases T‑55/24 and T-58/24 on 10 September 2025. These cases concerned challenges by Meta Platforms Ireland Ltd and TikTok Technology Ltd respectively regarding the Commission’s decisions calculating the annual regulatory supervisory fees they are obliged to pay as VLOPs under the DSA. The parties had challenged a number of aspects of the decisions, including the actual methodology applied by the Commission.

Meta and TikTok were ultimately successful on the basis that the Commission had set out the methodology for calculating the fee in the individual decisions issued to the parties rather than in an overarching delegated act as required by the DSA. While the decisions were annulled as a result, the Court limited the effects of the annulment for up to 12 months. This deferral is intended to give the Commission additional time to put in place a methodology for calculating AMARs through a delegated act.

What we have learned

DSA general

• The fact that a platform checks, modifies or supplements information provided by its users e.g. to ensure that it complies with the platform’s commercial requirements, does not call into question the fact that the information comes, at least in part, from those users. It therefore does not affect its status as a hosting service.

• The CJEU’s previous case-law relating to the hosting liability safe harbour under the eCommerce Directive cannot be relied on to interpret the concept of hosting service under the DSA. This is an interesting observation given there is otherwise relatively little guidance on interpreting this concept.

Calculation of AMARs

The concept of ‘active recipient’ must be capable of being adapted to different types of platforms capable of displaying different types of content in different ways. In the absence of a delegated act, it is the responsibility of providers to choose a reliable methodology for calculating AMARs.

Providers are entitled to make adjustments so as to identify unique recipients and exclude ‘unintended uses’. For example, it seems that providers of online platforms often only count recipients of the service who remain on the platform for a sufficiently long time, with minimum durations varying between 3 and 45 seconds. Zalando had chosen 10 seconds.

However, the methodology chosen by providers must not underestimate AMARs. Indeed, where they are unable to adequately identify unique users, distinguish users of first party content or discount bots without further processing of personal data, they are effectively required to overestimate AMARs.

In addition, providers cannot choose to exclude users that they know were exposed to content on their platform merely because they:

• Were not in a Member State in which the provider was active or in which their products could be delivered
• Are not registered
• Have not entered into a transaction on the platform
• Have remained inactive on the platform for a certain period of time, e.g. 30 mins, and so are deemed to be bots
• Have refused to accept the use of cookies, or
• Have accessed the platform from a mobile app rather than a website

Further commentary

The Court clarified that the concept of the ‘AMARs’ must be understood in a uniform and consistent manner throughout the DSA. This is irrespective of whether it is used for VLOP designation or for calculating the Commission’s supervisory fee. Despite this, the Commission is entitled to use different sources of information for calculating AMARs depending on the purpose, even if this results in vastly different outcomes.

The Court noted but did not criticise the fact that many providers do not publish actual AMAR numbers but merely state that they are less than 45 million. This seems to resolve the question of whether providers are required to publish an actual number under Article 24(2) of the DSA, as some regulators have suggested.

The Court criticised the fact that the delegated act adopted by the Commission did not provide the clarity expected. Interestingly, other acts adopted by the Commission under the DSA have attracted similar criticism, including the delegated act under Article 40(4) of the DSA.

In both of the supervisory fee cases, the General Court decided to side-step issues around the methodology by the Commission for calculating supervisory fees. This included the challenging issue of whether the Commission is entitled to calculate fees by reference to the group of companies to which a designated service provider belongs. This is likely to merely prolong this issue unless the Commission chooses to amend its methodology in a new or revised delegated act.

For further information and expert advice concerning the DSA, please get in touch with a member of our Data & Technology team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.