Case C-40/26 P, Amazon EU v Commission – a marketplace is not a social network
The Digital Services Act reserves its heaviest obligations for platforms with 45 million users. Amazon says the number is the wrong test, and the Commission says the General Court had no business hearing the argument.
Facts
By Decision C(2023) 2746 of 25 April 2023 the Commission designated Amazon Store a very large online platform (VLOP) under Article 33(4) of Regulation (EU) 2022/2065. Designation triggers Section 5 of Chapter III — the annual systemic-risk assessment in Article 34, the mitigation duties, the non-profiling option for recommender systems in Article 38, the public advertisement repository in Article 39, data access in Article 40, and the supervisory fee. Amazon challenged the designation, arguing among other things that Article 33 itself was unlawful; the General Court (Seventh Chamber, extended composition) dismissed the action on 19 November 2025 in Case T‑367/23 (ECLI:EU:T:2025:1038). Amazon appeals on six pleas, all framed under the Charter. The Commission has lodged a separate appeal against the same judgment, Case C‑47/26 P, on the ground that the General Court should have refused to examine the legality of the substantive obligations at all.
Grounds of Appeal
According to the Official Journal notice, Amazon asks the Court to set aside the judgment, give final judgment annulling the designation decision, or in the alternative annul it in so far as it imposes the Article 38 and Article 39 obligations, or refer the case back.
First, the General Court misinterpreted the notion of ‘systemic risks’ and thereby misapplied Article 52(1) of the Charter. The General Court erred in law in its interpretation of the term ‘systemic risk’ by equating any risk appearing on a very large online platform with a ‘systemic’ risk solely because of the platform’s reach. It thereby distorted the proportionality assessment of the interference with the appellant’s rights under the Charter.
Second, the General Court failed to consider that the legislature had not exercised its discretion and thereby misapplied Articles 52(1) and 47 of the Charter. The General Court erred in law by failing to properly consider the legislative process and by failing to recognise that there is no evidential basis for applying Section 5 of Chapter III of Regulation 2022/2065 to very large online marketplaces. Furthermore, the General Court unlawfully substituted its own reasoning for that of the legislature, and erred in law by requiring the appellant to demonstrate that the measures in question are based on objective criteria connected to the legislature’s aims and that the resulting burdens are proportionate to these aims.
Third, the General Court misapplied Articles 20 and 52(1) of the Charter. The General Court erred in law by applying an erroneous approach to legislative discretion and the standard of review. Due to this error in law, it erroneously assumed that subjecting very large online marketplaces to the same obligations as very large social media platforms, content-sharing and search services, despite differences in their business models and risk profiles, was justified under Article 20 of the Charter. Further, the General Court erroneously found that treating very large online marketplaces differently to smaller online marketplaces and retailers, despite similarities in their business models and risk profiles, was justified under Article 20 of the Charter.
Fourth, the General Court misapplied Articles 16 and 52(1) of the Charter. The General Court erred in law by relying on an incorrect standard of review, failing to adequately assess each stage of the required proportionality analysis, and by disregarding the lack of legitimate purpose and proportionality of Articles 38 and 39 of Regulation 2022/2065 vis-à-vis online marketplaces.
Fifth, the General Court misapplied Articles 11 and 52(1) of the Charter. The General Court erred in law by relying on an incorrect standard of review and by erroneously finding that the interference by Article 38 DSA (Digital Services Act) with the appellant’s right to disseminate commercial information was justified.
Sixth, the General Court misapplied Articles 7 and 52(1) of the Charter. The General Court erred in law by relying on an incorrect standard of review and by erroneously finding that the interference by Article 39 DSA with the right to privacy was justified.
Sources
OJ notice C/2026/2872 (EUR‑Lex) · Commission’s appeal, C‑47/26 P (EUR‑Lex) · Case file on CURIA · Judgment under appeal, T‑367/23 (ECLI:EU:T:2025:1038) · Regulation (EU) 2022/2065
Comment
Amazon’s appeal is not really about the designation. It is about whether the Union legislature was entitled to treat every platform above 45 million users identically, whatever it does. The first plea puts the point in a single sentence: the General Court equated “any risk appearing on a very large online platform with a ‘systemic’ risk solely because of the platform’s reach”. A marketplace, on this argument, is a shop; the systemic risks Article 34 has in mind — disinformation, illegal content, effects on civic discourse and elections — are risks of social media, and applying the same regime to a store because it is a big store is disproportionate under Article 52(1), discriminatory under Article 20, and an interference with the freedom to conduct a business under Article 16 that the legislature never justified.
The General Court’s answer, and the legislature’s, is that size is the point. Article 33(1) applies the section to platforms whose average monthly active recipients equal or exceed 45 million, and the recital logic is that reach itself creates the systemic dimension — that what a very large marketplace recommends, advertises and sells reaches enough people to matter regardless of whether the content is a political post or a product listing. The choice of a quantitative trigger over a qualitative one was deliberate, and the standard of review Amazon attacks in every plea is the Court’s long-standing deference to legislative choices in complex fields. The appeal asks the Court to narrow that deference when Charter rights are engaged — an argument that has succeeded before in data retention, and failed in most other places.
The Commission’s cross-appeal is the procedurally sharper of the two. Under Article 277 TFEU a party may plead the inapplicability of “an act of general application” that is “at issue” in the proceedings. The Commission says the designation decision was based on Article 33 and nothing else; the substantive obligations in Articles 34, 35, 38, 39 and 40 were neither its basis nor applied by it, so there was no “direct legal connection” and the General Court should have declared the plea of illegality inadmissible instead of examining — and upholding — those provisions. If the Commission wins, Amazon’s six pleas fall without being heard, and no designated platform could challenge the DSA’s substantive obligations through its designation; it would have to wait for an enforcement decision and challenge that. That would push every constitutional argument about the Act years down the road, which is presumably the point.
Two other designated marketplaces are in the same position. Zalando’s challenge, dismissed in September 2025, is on appeal in Case C‑724/25 P and turns on the counting of recipients rather than the Charter. Between them, the two cases will decide whether “very large online platform” is a description of a business or merely of a number.