The European Commission has not yet provided a detailed explanation on how it calculates the user numbers for platforms under the Digital Services Act (DSA). Zalando, a German fashion website, has challenged its designation as a Very Large Online Platform (VLOP) under the DSA in the General Court in Luxembourg. The hearing could raise questions on how the European Commission calculates user numbers.
Under the DSA, the Commission can adopt secondary legislation through a delegated act which would specify the methodology for calculating the number of average monthly active recipients. However, the Commission has not done this yet. This means that the numbers can be different from company to company. In the case of Zalando, the company provided the Commission with two different types of users, depending on the business model.
Zalando claims that its retail business, which represents 61% of its business, does not fall within the scope of the DSA. Its actual user numbers are therefore a lot lower. The Commission stated that it is impossible to know whether a particular recipient of Zalando is exposed to products stemming from Zalando SE’s proprietary retail business or from third-party traders using its intermediation service, as both types of products are indistinctly displayed on Zalando’s online interface.
Zalando also claims that while the DSA was introduced to prevent ‘systemic risk’ arising from disseminating harmful or illegal content from third parties, this content doesn’t apply to its platform. Zalando’s most recent transparency report, which applies to Zalando’s content moderation efforts from April 2024 to September 2024, showed that it received 731 notices regarding content. Upon further screening, only 111 of these notices required the removal of content from its platform. Zalando received 0 orders from authorities.
If the court sides with Zalando, this could mean a breakthrough for other platforms with similar business models, as well as those that also appealed their designation. The court’s decision in the Zalando case is expected at a later time.
Source: https://www.euronews.com/next/2025/03/06/zalandos-legal-case-to-spark-eu-commission-online-platform-headache
