Amazon v Commission: EU’s General Court dismisses Amazon’s challenge to VLOP designation

On 19 November 2025, the General Court of the European Union (the General Court) delivered a significant judgment in Case T-367/23, dismissing Amazon EU Sàrl (Amazon)’s challenge to the European Commission (EC)’s decision to designate Amazon Store as a “very large online platform” (VLOP) under the Regulation (EU)  2022/2065 (the Digital Services Act or DSA). This decision follows the decision in Case T-348/23 Zalando v Commission in September 2025 (the Zalando decision) (see our analysis of that decision here), and is the second decision in a number of challenges that providers have brought to the designation of their platforms as VLOPs.

Key takeaways

• Fundamental rights: Amazon’s challenge focused on various fundamental rights grounds enshrined in the EU Charter of Fundamental Rights (the Charter), none of which were successful. The General Court endorsed the compatibility of the VLOP-specific DSA obligations with the Charter and rejected the contention that those obligations unjustifiably infringed certain Charter rights. In the General Court’s view, any interference with the Charter rights was justified to ensure a high level of consumer protection.
• Designation criteria: Amazon argued that qualitative criteria for designating VLOPs would have been more proportionate to the objectives pursued by Articles 43-43 DSA, rather than mere reliance on the average monthly active recipients (AMAR) threshold. This argument was rejected by the General Court, who considered that qualitative criteria would be costlier, longer, and create legal uncertainty for providers.
• Consumer protection objective: The General Court made clear that the objectives pursued by the DSA, including the consumer protection objectives sought to be achieved in respect of marketplaces, can justify negative economic consequences for those marketplaces. This applies even if those consequences are significant.

Elements of Amazon’s challenge

On 25 April 2023, the EC designated the Amazon Store, an online marketplace, as a VLOP (the Designation Decision). This Designation Decision was based on the EC’s determination that the Amazon Store’s AMAR in the EU exceeded the threshold of 45 million. Designation as a VLOP means, among other things, that Amazon is subject to additional significant obligations to manage systemic risks on its platform, which are outlined in Articles 34 to 43 of the DSA.

As part of its challenge, Amazon argued that, specifically in the context of marketplaces, VLOP designation and the specific obligations arising from that designation infringed the following fundamental rights in the Charter:

1. the right to conduct a business (Article 16 of the Charter)
2. the right to property (Article 17(1) of the Charter)
3. the right to equal treatment (Article 20 of the Charter)
4. the right to freedom of expression and information Article 11(1) of the Charter)
5. the right to confidentiality of communications (Article 7 of the Charter)

Alleged inadmissibility

Amazon’s challenge concerned the alleged illegality of Article 33(1), Article 38 and Article 39 DSA respectively. At the outset of proceedings, the EC, the Council of the EU (the Council) and Bureau européen des unions de consommateurs (BEUC) alleged that Amazon’s claim that Article 33(1) DSA was unlawful, must be considered inadmissible.

The Council’s argument

The Council’s inadmissibility argument focused on the alleged lack of information to assess the merits, or scope, of Amazon challenge. The General Court dismissed these arguments, determining that it was clear that Amazon was claiming that Article 33(1) DSA is unlawful.

The EC / BEUC argument

The EC and BEUC argued inadmissibility on the basis that the DSA provisions which Amazon claims are unlawful do not constitute the legal basis of (or have a legal connection with) the Designation Decision. The General Court dismissed that argument, holding that while the Designation Decision was adopted on the basis of Article 33(4) DSA, it applied the criterion set out in Article 33(1) DSA. Therefore, in the General Court’s view, the Designation Decision had a direct legal connection with Article 33(1) DSA and Amazon’s claim was admissible. It followed that an assessment of the lawfulness of the obligations in Articles 34 to 43 DSA was admissible, as Amazon’s claim was that Article 33(1) DSA was unlawful because it applies those provisions to online marketplaces.

Standard of review

Relying on the EU Court’s previous case law, the General Court confirmed that where an EU measure interferes with rights guaranteed by the Charter in order to pursue consumer protection objectives, the lawfulness of that measure can only be called into question where the measure is “manifestly inappropriate”. 

Accordingly, while the General Court accepted that the DSA interfered with Amazon’s rights, its analysis focussed on whether that interference was manifestly inappropriate.

Alleged interference with the right to conduct a business

(a) Do online marketplaces give rise to systemic risks?

Amazon argued that the obligations arising from Articles 34 to 43 DSA are designed to reduce systemic risks, which in its view, are not relevant for marketplaces. In particular, Amazon argued that:

• Marketplaces as a system: Do not give rise to systemic risks since they are not part of an interdependent system of marketplaces
• Nature of content: Ads and comments on marketplaces mainly concern products, so the same risks that arise for social media networks (e.g. related to democratic processes, public health, disinformation) are not posed by marketplaces
• Illegal content: While illegal products could be marketed on marketplaces, and users could use ads or comments on marketplaces to convey illegal content, such content is restricted within Amazon’s policies
• Large vs small marketplaces: Dangerous products would not spread more rapidly on a marketplace with a higher AMAR and is actually more likely to be prevalent on smaller marketplaces due to the reduced reputational risk for those marketplaces
• Consumer protection standard: Articles 34 to 43 DSA do not enhance consumer protection comparable in an offline context as envisioned by Recital 12 DSA and actually go beyond provisions relating to an offline environment

The General Court rejected Amazon’s arguments in this respect and held that:

• the objective of the DSA is to mitigate systemic risks to society as a whole in so far as they could affect a significant portion of the EU population. The fact that marketplaces can be independent of one another, and independent from other types of online platforms, (and therefore may not form part of a “system”) does not mean that individual marketplaces cannot give rise to the types of systemic risks the DSA tries to mitigate.
• third parties could use advertisements and comments to disseminate illegal content, which could pose systemic risks the DSA tries to mitigate.
• since illegal products could be marketed on marketplaces, there may be a negative impact on consumer protection, and that is a type of systemic risk the DSA aims to mitigate.
• Amazon had not substantiated its argument regarding the risk of dangerous products being more prevalent on smaller marketplaces. In any event, the Court held that the fact that a platform had a large AMAR meant that a larger number of people could obtain the dangerous products from such a marketplace. 
• the fact that rules in relation to illegal content should broadly reflect the rules in an offline environment does not mean that more restrictive measures cannot be adopted for marketplaces than “bricks and mortar shops” to protect consumers.

(b) Could less onerous measures achieve the objectives of the DSA?

Amazon argued that less onerous measures could be adopted to achieve the objectives of the DSA, which did not infringe marketplaces’ freedom to conduct their business as enshrined in the Charter.

In this regard, Amazon argued that:

• marketplaces could have been excluded from the VLOPs covered by Article 33 DSA (and the VLOP-specific obligations contained in the DSA).
• more qualitative criteria could have been adopted, as has been done in other areas such as telecommunications, that the EC would have to consider before designating VLOPs rather than reliance on AMARs.
• in respect of Article 39 DSA, Amazon argued that this obligation could be applied to make the repository available to researchers and authorities, rather than the public at large.

The General Court disagreed with Amazon’s arguments and found that:

• marketplaces give rise to systemic risk and their exclusion from potential designation under Article 33 DSA could harm the ability of the DSA to mitigate against those risks.
• qualitative criteria, rather than AMARs, would require case-by-case analysis by the EC. The EC produced evidence that it considered implementing qualitative criteria but considered that this would lead to legal uncertainty and a longer, costlier process for VLOPs. Accordingly, the General Court appeared to accept that using qualitative criteria would not be a less onerous way of achieving the DSA’s objectives and would, in effect, delay the implementation of the DSA.
• the objective of Article 39 is to give consumers access to information regarding ads to which they are exposed and prevent the dissemination of illegal or harmful content within ads. This objective may be more difficult to achieve if only researchers and authorities had access to this information.

The extent of costs borne by marketplaces

To support its argument that VLOP designation infringed its rights to conduct a business, Amazon argued that the obligations pursuant to Article 34 to 43 DSA imposed significant costs for marketplaces. For example, complex changes to Amazon’s IT systems would be required to comply with those obligations.

In particular, Amazon was concerned that Article 38 DSA, which requires VLOPs to give users the option to choose a recommender system not based on profiling, impacted its ability to market to its customers. Amazon argued that:

• Article 38 limits marketplaces’ ability to inform customers of offers and harms customers by not allowing them to easily find products that interest them.
• recommender systems based on profiling allow the products of SMEs to be promoted. In their absence, Amazon would be forced to promote products of more well-known undertakings.

The General Court did not consider these arguments to be persuasive. It held that Article 38 gives service recipients the option to choose whether they are exposed to a recommender system based on profiling and can revert to an option based on profiling if they want. It found that offering marketplace consumers a choice on that basis could not be considered as harmful to those consumers.

Amazon further argued that Article 39 DSA, which requires VLOPs to publish an ads repository and Article 40 DSA, which requires VLOPs to disclose certain data to vetted researchers, would render Amazon’s marketplace less attractive when compared to other marketplaces that are not designated as VLOPs. The General Court was not convinced by these arguments since (i) Amazon produced no evidence to support this; (ii) much of the information in Article 39 was already accessible to the public; and (iii) Article 40 contained certain protections (e.g. vetted researcher criteria, the ability to request an amendment to a research request in light of confidentiality concerns, exemptions for trade secrets and security).

The General Court concluded that the freedom to conduct a business is not absolute and may be limited to achieve the objectives pursued by the DSA in respect of marketplaces (i.e. ensuring a high level of consumer protection). In such circumstances, the measures adopted by the EU legislature in this regard were not manifestly inappropriate.

Alleged interference with right to equal treatment

Marketplaces as online platforms

Amazon argued that Article 33(1) DSA treats different types of online platforms the same even though search engines, social networks and content-sharing services pose specific risks that do not arise for marketplaces. In Amazon’s view, marketplaces should be treated akin to cloud computing and web-hosting services, which are not considered online platforms.

The General Court rejected this argument, noting that Amazon (and marketplaces generally) could not be considered a cloud computing or web-hosting service since such services did not align with the definition of cloud computing or web-hosting services provided in Recital 13 of the DSA - i.e. the dissemination of information to the public is not a minor and ancillary feature of marketplaces.

Is AMAR relevant for marketplaces?

Amazon argued that retailers and marketplaces which do not meet the AMAR threshold are unfairly considered differently to marketplaces that meet the AMAR threshold. Amazon argued that all marketplaces (irrespective of AMAR) should be treated the same for the purposes of Articles 34 to 43 DSA, since the risk of illegal content on smaller marketplaces is actually greater than for marketplaces that meet the AMAR threshold.

The General Court reaffirmed that the AMAR achieved the purpose of the Article 34 to 43 DSA obligations, in that it addresses risks to society which differ in scale and impact from those on smaller platforms.

Marketplaces versus retailers

Amazon argued that marketplaces should be treated the same as retailers, the latter of which are not covered by Article 33 DSA. Amazon argued that retailers market their own products on the internet and might have similar consumer reach to marketplaces.

The General Court found that, in contrast to retailers, online platforms disseminate information from service recipients and do not necessarily know all information disseminated on their platforms. By consequence, VLOPs may disseminate illegal content without their knowledge (and without incurring liability due to the hosting defence). Therefore, marketplaces and retailers could not be considered analogous for the purposes of the DSA.

The General Court concluded that there was no breach of equal treatment in respect of marketplaces, since the distinctions made in the DSA were not arbitrary or manifestly inappropriate in light of the objective pursued.

Other fundamental rights arguments: property, confidentiality and freedom of information/expression

In addition to the fundamental rights arguments above, Amazon raised arguments in respect of:

• Property rights: Amazon argued that the obligations in Articles 34-43 DSA impose a significant burden on marketplaces and therefore interfere with their rights to property.
• Confidentiality: Amazon argued that Articles 39 and 40 DSA in particular infringe the protection of confidential information and may cause considerable commercial harm.
• Freedom of information/expression: Amazon argued that Article 38 DSA prevents Amazon from offering relevant products to its consumers, which hinders third party sellers from promoting their products and communicating with customers.

The General Court rejected these arguments and rejected them on the following basis:

• Property rights: While Articles 34-43 impose administrative burden on VLOPs, they do not deprive those providers of the ownership of these platforms. Any interference is justified on the basis of consumer protection.
• Confidentiality: While accepting there was an interference with the right to privacy, the General Court found this interference was justified since (i) it was provided for in law; (ii) the essence of this fundamental right for VLOPs was not affected (e.g. Article 39 is time limited, advertising only accounts for a small fraction of Amazon’s revenue, particularly sensitive information is not disclosed, and certain criteria in respect of confidentiality must be met); and (ii) the interference is proportionate to achieve consumer protection.
• Freedom of information/expression: Similar to the above, the General Court found that while there was an interference with this fundamental right, the interference was justified on similar grounds (i.e. provided in law, the essence of the right was not effected, and it as proportionate to the DSA’s consumer protection objective). Additionally, the General Court determined that the legislature was entitled to take the view that consumer protection required consumers to be able to access, if they wished, an option not based on profiling.

Additional arguments: illegality of Articles 38 and 39 DSA

Since the General Court rejected Amazon’s arguments in respect of Article 33(1) DSA as unfounded, and the same arguments were made in respect of Articles 38 and 39 DSA, it equally rejected the latter arguments as unfounded.

Analysis

The General Court’s judgment reinforces the difficulty providers will face in challenging VLOP designations, particularly when read alongside the Zalando decision. In effect, where a service hosts and disseminates third party content, it will be very challenging to argue that the service does not potentially give rise to the risk of the dissemination of illegal content, or content which otherwise gives rise to the types of systemic risks the DSA seeks to address.

Furthermore, providers face a very high threshold to successfully argue that the obligations imposed on it are disproportionate, given the consumer protection aims of the DSA. Not only will providers have to argue that such obligations are manifestly inappropriate, they will also need to substantiate those arguments with compelling evidence. 

The Amazon judgment also reaffirms the Court’s assessment that using AMAR for designation purposes is an appropriate way of measuring the potential for a service to give rise to systemic risks in the EU. Further, the Court again dismisses the suggestion that a qualitative assessment is needed to understand whether the service being designated actually gives rise to systemic risks (reaffirming the Court’s holding in Zalando).

It remains to be seen whether there are nuances in the remaining DSA designation challenges brought by WebGroup (Case T-139/24R), Technius (Case T-134/24), and Aylo Freesites (Case T-138/24) which could lead to a successful annulling of the relevant designation decisions. Those cases mostly focus on challenges to the Article 39 DSA obligation to publish certain advertiser information. While the proportionality of that obligation is dealt with in the Amazon decision, the forthcoming decisions may have to grapple with fact-specific arguments around potential doxing that did not arise in the Amazon decision.

The Technius and Aylo Freesites cases also raise a new issue which the General Court will have to resolve, regarding the manner in which the EC calculated the relevant AMARs. However, even if the Court finds a legal error in this respect, it is possible that it will stay any annulment of the designation decisions to give the EC an opportunity to follow the correct procedure, as it did in the Meta (Case T-55/24) and TikTok (Case T-58/24) supervisory fee cases.

For further information, please contact Dr Stephen King, Partner, or Jade Van Standen, Solicitor or your usual ALG Technology contact.

Date published: 25 November 2025