The last few months have seen a series of Digital Services Act (DSA) judgments by the General Court (GC) of the European Union, the first three of which were examined in an earlier blog post. The latest in this series of judgments, handed down on 19 November 2025, is Amazon EU v Commission (Case T-367/23), in which the GC dismissed Amazon’s appeal against the designation of its platform, Amazon Store, as a Very Large Online Platform (VLOP) under Article 33(1) of the DSA.[1]
This latest judgment confirms the legality of the DSA’s tiered enforcement system, under which the largest platforms face the most stringent obligations. Amazon had mounted an impressive assault on the DSA, arguing that several of its provisions breached no less than five fundamental rights. The GC rejected all pleas, confirming the broad discretion of the EU legislature.
Amazon’s appeal in a nutshell
Amazon’s appeal was not targeted at the designation decision, but only at provisions of the DSA, which Amazon argued formed the legal basis of the designation decision.
In particular, Amazon argued that Article 33(1) DSA, which sets the 45 million average monthly active recipients of service (AMAR) threshold for platforms to be designated as VLOPs, is unlawful insofar as it subjects certain marketplaces to the strictest obligations under the DSA, set out in Articles 34 to 43. According to Amazon, the provision in question infringes various fundamental rights protected by the Charter of Fundamental Rights of the European Union (Charter) such as (i) freedom to conduct business (Article 16), (ii) right to property (Article 17(1)), (iii) principle of equal treatment (Article 20), (iv) freedom of expression and information (Article 11(1)), and (v) right to private life and the protection of confidential information (Article 7). Each of Amazon’s claims will be discussed in further detail below.
Additionally, Amazon argued that Articles 38 and 39 of the DSA were unlawful (by way of an exception of illegality). These provisions impose on VLOPs the obligation to provide an option for a non-profiling-based recommender system and to establish an advertising repository, respectively.
The Court’s judgment
Admissibility
Before turning to the substance, the GC addressed – and dismissed – several admissibility objections. Perhaps the most noteworthy point was the Commission’s argument, supported by the Bureau Européen des Unions de Consommateurs (BEUC), that Amazon’s challenge was inadmissible because it targeted the legality of certain DSA provisions rather than the designation decision itself. The GC rejected that argument, holding that the contested decision had a direct legal connection with Article 33(1) DSA as the unlawfulness of that provision would lead to the annulment of the designation decision. The appeal was therefore found admissible.[2]
More controversial were the exceptions of illegality concerning Articles 38 and 39, which were not the legal basis of the designation decision. Whether it could be argued that these provisions had a direct link to the designation decision was, at best, doubtful. The GC however dodged the bullet and summarily dismissed these pleas as unfounded (without examining their admissibility), as Amazon relied on arguments that the Court had already rejected in connection with the first plea.[3]
Amazon’s arguments relating to fundamental rights
The GC applies a consistent approach when examining Amazon’s pleas that the DSA infringes its fundamental rights. It sets a relatively low threshold for finding an interference with a Charter right, but a much higher threshold for establishing that such an interference is unjustified.
In evaluating whether a limitation is justified, the GC follows the methodology laid out in Article 52(1) of the Charter: any limitation on the exercise of a Charter right must (i) be provided for by law; (ii) respect the essence of the right; and (iii) be proportionate, meaning it must be necessary and genuinely pursue an objective of general interest recognised by the Union or protect the rights and freedoms of others. The GC further recalls that, under established case law, the EU legislature enjoys a broad margin of discretion where its action involves political, economic and social choices and complex assessments, and that measures in the field of consumer protection fall within this category.[4] In such circumstances, a measure can be deemed unlawful only if it is manifestly inappropriate.[5]
The Court ruled that the first condition is met, as the interference being considered arises from a legislative act, the DSA. The GC was also reluctant to find that the essence of a right has been impaired. It further ruled that the DSA pursues objectives of general interest, particularly a high level of consumer protection under Article 38 of the Charter. Accordingly, the key question became whether the interference is proportionate – a matter for which the Court grants the legislature considerable discretion.
Alleged infringement of the freedom to conduct a business (Article 16 Charter)
In assessing Amazon’s first argument, the GC agreed with Amazon that Article 33(1) interferes with the freedom to conduct a business by requiring VLOPs to comply with Articles 34 to 43 DSA, since those provisions may entail significant costs, considerable organisational impacts, or complex technical solutions to be adopted by VLOPs. However, the GC rejected Amazon’s argument that this interference is disproportionate.
According to Amazon, the interference with this right was disproportionate for three reasons: (i) marketplaces do not generate systemic risks; (ii) less restrictive measures could achieve the DSA’s objective; and (iii) the burden imposed on marketplaces is excessive.
The GC disagreed. First, it emphasised the broad discretion enjoyed by the EU legislature (a point it made repeatedly throughout the judgment) and concluded that the EU legislature did not commit a “manifest error” in considering that marketplaces with over 45 million AMARs may give rise to systemic risks, such as disseminating illegal content or infringing on fundamental rights such as consumer protection (Article 38 of the Charter).[6] In this respect, the GC noted that this broad discretion enabled the legislature to adopt more restrictive measures for online marketplaces than for physical stores, contrary to Amazon’s claim.[7]
Next, the GC rejected Amazon’s contention that the DSA’s objectives could be achieved by less restrictive measures. It dismissed Amazon’s argument that marketplaces do not give rise to systemic risks, having already established that they may in fact do so. As in the Zalando case (Case T-348/23), it also rejected Amazon’s claim that qualitative rather than quantitative criteria should apply to the VLOP designation, noting that such an approach would create greater legal uncertainty and result in a more time-consuming and costlier designation process.[8] Finally, regarding Amazon’s suggestion that the advertising repository required under Article 39 should be accessible only to vetted researchers and authorities rather than the public, the GC held that this alternative would make it more challenging to achieve the DSA’s objectives of limiting the dissemination of illegal content, strengthening consumer protection, and protecting minors.[9]
On the compliance burden for VLOPs, the GC noted that Amazon had not produced any cost estimate, but “assuming that those costs are genuinely significant, including for providers of very large online platforms likely to have access to extensive resources”, even significant negative economic consequences for certain economic operators are justified in light of the importance of the consumer protection objective.[10] The GC therefore rejected all of Amazon’s arguments regarding the allegedly excessive compliance burden arising from the obligations to offer a non-profiling recommender system (Article 38), establish an advertising repository (Article 39), and provide data access to vetted researchers (Article 40).
Alleged infringement of the right to property (Article 17 (1) Charter)
In a similar vein, the GC dismissed Amazon’s claim that the obligations under Articles 34 to 43 interfered with its right to property. It held that the plea was unsubstantiated and noted that, although these provisions impose administrative burdens on VLOP providers, they do not deprive them of ownership of their platforms.[11] Furthermore, the Court added that any potential interference would be justified by the EU legislature’s objective of preventing systemic risks.[12]
Alleged infringement of the principle of equal treatment (Article 20 Charter)
Amazon argued that Article 33(1) DSA breaches the principle of equal treatment in two ways: (i) by subjecting different types of online platforms and search engines to the same rules, even though marketplaces – according to Amazon – do not give rise to the same risks (Zalando had also raised this point unsuccessfully in its appeal[13]); and(ii) by treating comparable situations differently, since retailers and online marketplaces with less than 45 million AMARs fall outside its scope.
The GC rejected both arguments. It reiterated that the EU legislature enjoys a wide margin of discretion and found the distinctions drawn to be neither arbitrary nor manifestly inappropriate given the DSA’s objectives. The Court confirmed that the legislature was entitled to treat all VLOPs (including marketplaces) in a uniform manner, since marketplaces may also give rise to systemic risks, as established earlier in the judgment.[14] Likewise, not subjecting cloud computing services to the same obligations was not considered arbitrary or inappropriate either.[15]
Regarding Amazon’s claim that all marketplaces (small or big) should be treated alike, the GC held that marketplaces exceeding the 45-million AMAR threshold pose risks that differ in scale and societal impact from smaller marketplaces.[16] It also observed that online marketplaces occupy a different position from retailers, who typically have greater awareness of and control over the content they disseminate and therefore do not present equivalent systemic risks.[17] This may resonate with some of the arguments that Zalando is raising in its appeal of the GC’s judgment upholding its VLOP designation. Indeed, the confirmation by the GC that the main risk arises out of third-party content (and not the platform’s own offering) gives weight to the argument that platforms that overwhelmingly sell their own products do not raise the same level of systemic risks. In turn, this potentially calls for a more refined approach to calculating average monthly active recipients (AMAR) than what the Commission is currently doing.
Alleged infringement of freedom of expression and information (Article 11(1) Charter)
In relation to the obligation to offer a non-profiling recommender system, the GC acknowledged that this requirement restricts how VLOPs may present products on their platforms if a user chooses that option. It may therefore interfere with freedom of expression, which applies, in particular, to the dissemination by a business of commercial information, including in the form of advertising.[18]
Nevertheless, it found this interference justified on the grounds that it does not affect the essence of the right and pursues a legitimate objective (a high level of consumer protection enshrined in Article 38, Charter).[19] On proportionality, the Court concluded that the legislature did not exceed its discretionary powers by considering that consumer protection required users to have the possibility, if they so wished, to access a recommender system that does not rely on profiling.[20]
Alleged infringement of the right to private life and protection of confidential information (Article 7 Charter)
Finally, regarding the obligations in Articles 39 and 40 DSA, the GC accepted that both the advertising transparency requirements and the obligation to grant vetted researchers access to certain data constitute an interference with the right to private life and the protection of confidential information.[21]
However, the GC stressed that the interference with the right was limited to what is strictly necessary, and that no less intrusive alternatives would achieve the same level of consumer protection. It noted that the public nature of the advertising repository is tightly circumscribed, and that access for vetted researchers is subject to stringent security and confidentiality safeguards.[22] The information to be disclosed is temporally and substantively limited, relates only to a portion of Amazon’s economic activity, and excludes data that Amazon considers most commercially sensitive (information on the performance of individual ads).[23] Moreover, some of the information is not confidential, and the framework includes robust protections for personal data.[24] The Court therefore concluded that Articles 39 and 40 do not constitute a disproportionate interference with the right to respect for private life.
Accordingly, the Court dismissed Amazon’s plea and the appeal in its entirety.
Key takeaways
The judgment is hardly surprising. It confirms once again that the Court affords the EU legislature a wide margin of discretion when making complex policy choices. We expect the Court to adopt a similarly deferential stance in forthcoming DMA gatekeeper appeals challenging the legality of specific DMA provisions arising from designation, such as Apple v Commission (Case T-1080/23).
As in Zalando, in the present case, the GC upheld the compatibility of the DSA with several higher-order EU law rules, notably those established in the Charter. Although Amazon advanced a wider set of fundamental-rights arguments than Zalando, its challenge was equally unsuccessful. The first round of this debate is now closed, but attention will shift to the Court of Justice. Zalando has already appealed the GC decision, and Amazon may well follow suit.
In future cases before the GC, the debate will likely be more focused on the legality of the Commission’s enforcement decisions rather than on the validity of the DSA itself. A key area of focus will be the methodology for calculating AMAR, an issue central to the ongoing appeals challenging the designation of adult-content platforms Stripchat and Pornhub as VLOPs, both of which were heard earlier this month.[25]
[1] Commission Decision C(2023) 2746 final of 25 April 2023 designating Amazon Store as a very large online platform in accordance with Article 33(4) of Regulation 2022/2065 of the European Parliament and of the Council.
[2] Paragraphs 37-38.
[3] Paragraph 208.
[4] Paragraph 57.
[5] Paragraph 58.
[6] Paragraph 77.
[7] Paragraph 76.
[8] Paragraphs 83-85.
[9] Paragraph 89.
[10] Paragraph 120, referring to paragraph 59, which in turn refers to inter alia C‑28/20 Airhelp, paragraph 50, and C‑579/19 Association of Independent Meat Suppliers and Cleveland Meat Company, paragraph 97.
[11] Paragraph 128.
[12] Ibid.
[13] Zalando v Commission, para 131.
[14] Paragraph 137.
[15] Paragraph 140.
[16] Paragraph 146.
[17] Paragraphs 152-157.
[18] Paragraph 164.
[19] Paragraphs 170-172.
[20] Paragraph 174.
[21] Paragraph 184.
[22] Paragraphs 177-190.
[23] Paragraph 196.
[24] Paragraphs 196-197.
[25] Case T-138/24 Aylo Freesites v Commission and Case T-134/24 Technius v Commission.
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