When is my webshop a very large online platform under the DSA?

The European Digital Services Act (DSA) imposes strict obligations on "very large online platforms" (VLOPs). A ruling of the European General Court on 3 September 2025 in the case of Zalando v. European Commission creates clarity on two crucial questions: when is a (hybrid) webshop considered an "online platform" and, more importantly, how are users counted? The ruling is a wake-up call for every major e-commerce player: in principle, every visitor who can come into contact with third-party information counts, even if that information is controlled.

The facts and legal context

The Digital Services Act (Regulation (EU) 2022/2065) designates platforms with more than 45 million average monthly active customers in the Union as VLOP. This status carries significant additional obligations, such as risk assessments, external audits and increased transparency about content moderation.

Zalando, known for its online fashion sales, operates a hybrid model:

1. Zalando Retail: Sale of products directly by Zalando itself.
2. Partner Program: Third-party sellers offer their products through the Zalando platform.

In April 2023 the European Commission designated Zalando as a VLOP, because, according to its calculations, the platform had more than 83 million active customers. Zalando disputed this designation and went to the General Court. The company argued that only users of the "Partner Program" should count. Based on the share of sales by partners (37%), Zalando arrived at only 30.8 million users, well below the threshold of 45 million.

The decision of the General Court

On 3 September 2025, the General Court rejected Zalando's appeal and upheld the Commission's decision. The General Court's reasoning is based on some fundamental principles of the DSA.

1. Zalando is indeed an 'online platform'

The Court held that Zalando's 'Partner Program' is clearly an 'online platform' within the meaning of the DSA. Indeed, it stores information provided by third-party vendors (the 'buyers of the service') and disseminates it to the public.

Zalando's argument that it actively monitors, edits and supplements partners' product information to ensure a uniform shopping experience was dismissed. The Court stated that this active role does not affect the fact that the information comes (in part) from third parties. Control over content is relevant to liability exemptions under the DSA, according to the Court, but not to qualification as a platform.

2. All 83 million users count

This is the crux of the case. The Court followed the Commission's reasoning that, due to Zalando's integrated interface, it is impossible to distinguish between visitors who see only Zalando Retail products and those who also interact with partner products. Products from both channels are often displayed on the same pages, and the identity of the seller only becomes clear late in the process.

Since Zalando itself could not show which of the 83 million visitors were not exposed to information from third-party sellers, the Commission was entitled to assume that all visitors were potentially exposed. Indeed, the term "active buyer" includes anyone who is "exposed" to the information, which is not limited to actually buying a product. Merely viewing the product name, picture or description is sufficient.

3. The DSA is not unlawful or disproportionate

The General Court also rejected Zalando's arguments that the DSA creates legal uncertainty, violates the principle of equality (by treating marketplaces and social networks equally) or is disproportionate. It ruled that the Union legislature has a wide margin of appreciation and that the criterion of the number of users is an objective and appropriate measure to identify platforms with a large social reach and potential systemic risk. The Court explicitly emphasized that marketplaces can also pose systemic risks, such as the sale of dangerous or illegal products, and have an impact on consumer protection.

Legal analysis and interpretation

This ruling is the first major judicial review of the designation methodology under the DSA and has far-reaching implications.

The ruling makes it clear that the burden of proof to separate user streams lies with the platform itself. A hybrid platform that cannot technically segment which users are exposed only to its own content and which to third-party content runs the risk of having its entire user base counted.

The days when an active role in content management excluded a platform from the definition of "intermediary" seem to be over for the application of the DSA. The focus of the DSA is on managing risks arising from scale, not host inaction.

The Court confirms that the logic of the DSA does not only apply to the spread of disinformation on social media. E-commerce platforms can also pose a systemic risk to consumer protection and product safety in the internal market due to their scale.

What this specifically means

• For (hybrid) online platforms: This statement is an urgent signal to critically evaluate your user statistics. Can you demonstrate what proportion of your visitors interact exclusively with your own first-party content? If not, you may need to consider your total user base before the 45-million mark. The cost and effort of VLOP compliance is significant.
• For consumers: This is positive news. The strict interpretation ensures that large, influential marketplaces are under the DSA's strictest rules, which should lead to better protection against counterfeiting, unsafe products and deceptive practices.
• For third-party vendors: Indirectly, they will feel the impact. Designated VLOPs will likely impose even stricter requirements on their partners in terms of product disclosure, compliance and transparency to mitigate their own risks under the DSA.

FAQ (frequently asked questions)

What is an "active buyer" according to the Court?
An active consumer is any user who interacts with information hosted by the platform. This is a very broad term: merely viewing or listening to information is sufficient. A transaction or even a click is not required.

My webshop sells its own products and also allows some partners. Am I now a VLOP?
Not automatic. You only become a VLOP if you exceed the threshold of 45 million average monthly active customers in the EU. However, this ruling clarifies that if you cannot separate visitors from your own offerings and those of partners, all your visitors can count toward this threshold.

Does it matter that I check and approve my partners' product information myself?
No. According to the Court, active control over content does not change your qualification as an "online platform" under the DSA. It may play a role in discussions about your liability, but not for whether the strict VLOP rules apply to you.

Conclusion

The Zalando ruling is important in the interpretation of the Digital Services Act. It confirms the broad and strict approach of the European Commission. For large online retailers with a hybrid model, the message is clear: know your data and be prepared. The inability to segment users will be interpreted to your disadvantage, with potentially far-reaching and costly consequences.