Before the courts

Zalando brought the first annulment action against a designation decision. Its argument went to the heart of how Article 33 counts: the DSA applies to intermediary services, and in its own-retail business Zalando is not an intermediary at all. Counting those customers towards average monthly active recipients, it said, inflated the figure past a threshold it would not otherwise have crossed.

The General Court dismissed the action on 3 September 2025. The decisive problem was evidential rather than conceptual — Zalando could not effectively separate users who had been exposed to third-party seller content from those who had not, on a service where both offerings sit in one interface.

The judgment affirmed the Commission’s use of average monthly active recipients as the designation metric, which is why it matters well beyond Zalando. It is the reason the split figures reported at designation — retail and third-party counted separately — exist in the record at all.

Zalando has appealed to the Court of Justice in Case C-724/25 P, filed on 13 November 2025.

Amazon sought annulment of its designation, arguing among other things that the asymmetric obligations — and the Article 39 advertising repository in particular — infringed rights under the Charter of Fundamental Rights.

On 19 November 2025 the General Court rejected the action in its entirety, finding that none of the invoked Charter rights had been violated and that the Commission’s designation decision was legally sound.

Taken with the Zalando judgment ten weeks earlier, this leaves the designation mechanism itself judicially unshaken at first instance. Both challenges to being designated at all have now failed.

Meta and TikTok each challenged the Commission’s implementing decisions setting their Article 43 supervisory fees, arguing the methodology produced arbitrary results — most pointedly that keying the cap to group-level net income means a loss-making provider of identical size can owe nothing at all.

The General Court (Extended Composition) annulled the decisions, but on an institutional ground rather than a substantive one. Because the calculation of average monthly active recipients is essential to determining the fee, Article 43(4) required that methodology to be set out in a delegated act. The Commission had used two implementing decisions instead, and that was the wrong instrument.

The Court maintained the effects of the annulled decisions for twelve months, giving the Commission time to re-adopt the methodology in the proper form. The practical result is that the fees stand for now and the machinery gets rebuilt underneath them.

It remains the only successful challenge brought against any part of the DSA’s designated-service regime — and it turned on administrative law, not on whether the tier is justified.