
Article European Law | 17/04/24 | 7 min. | Marc Mossé David Zygas
On April 25th, 2023,[1] the European Commission designated Amazon Store (“Amazon”) as a “very large online platform” (the “Decision”) under the regulation of October 19th, 2022 on a single market for digital services (“DSA”).[2] As such, Amazon is subject to a number of specific obligations. Article 39 of the DSA requires it to publish an advertising repository containing detailed information, including the content of the advertisement, the identity of the recipient, the period during which the advertisement is presented, targeting parameters, commercial communications on major online platforms and the total number of recipients reached.
By application filed on July 5th, 2023 with the General Court of the European Union (the “General Court”), Amazon sought to have the Decision annulled. By separate document on July 6th, 2023, Amazon made an application for interim relief seeking suspension of the contested Decision in so far as it requires Amazon to (i) provide users with an option for each of its recommender systems which is not based on profiling under Article 38 of the DSA; and (ii) compile and make publicly available an advertising repository under Article 39 of the DSA.
By order dated September 27th, 2023,[3] the General Court temporarily suspended the obligation to publish this repository.[4]
By order dated March 27th, 2024[5] (the “Order”), the Vice-President of the Court of Justice of the European Union (the “Court of Justice”), ruling on an appeal by the Commission, set aside “Point 1 of the operative part of the order of the President of the General Court […]” of September 27th, 2023. Point 1 ordered the operation of the Commission’s decision of April 25th, 2023 to be suspended “to the extent that that decision requires Amazon Store to compile and make publicly available the repository required by Article 39 [of the DSA]”.
As part of the balancing of interests, the Order noted:
This was the basis on which the Vice-President decided that “the interests defended by the EU legislature prevail, in the present case, over Amazon’s material interests, with the result that the balancing of interests weights in favour of dismissing the application for interim measures”.
Amazon is therefore obliged to provisionally comply in full with the obligations under the DSA, including publication of the advertising repository, until a decision on the merits of the case has been handed down. The case on the merits is continuing and, as a reminder, the judges on the merits are not bound by the assessment made on a provisional basis.
[3] https://curia.europa.eu/juris/document/document_print.jsf?mode=req&pageIndex=0&docid=277901&part=1&doclang=EN&text=&dir=&occ=first&cid=6859218