European Commission v Amazon Services Europe Sàrl.
| Jurisdiction | European Union |
| Date | 27 March 2024 |
| Court | Court of Justice (European Union) |
ORDER OF THE VICE-PRESIDENT OF THE COURT
27 March 2024 (*)
(Appeal – Interim relief – Approximation of laws – Regulation (EU) 2022/2065 – Single market for digital services – Additional online advertising transparency – Decision to designate a very large online platform – Action for annulment)
In Case C‑639/23 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 24 October 2023,
European Commission, represented by L. Armati, A. de Gregorio Merino and P.‑J. Loewenthal, acting as Agents,
appellant,
supported by:
European Parliament, represented by M. Menegatti, E. Ni Chaoimh and L. Taïeb, acting as Agents,
Council of the European Union, represented by N. Brzezinski, M. Moore and E. Sitbon, acting as Agents,
interveners in the appeal,
the other party to the proceedings being:
Amazon Services Europe Sàrl, established in Luxembourg (Luxembourg), represented by A. Conrad and M. Frank, Rechtsanwälte, I. Ioannidis, dikigoros, and R. Spanó, avocat,
applicant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1 By its appeal, the European Commission seeks to have set aside the order of the President of the General Court of the European Union of 27 September 2023, Amazon Services Europe v Commission (T‑367/23 R, ‘the order under appeal’, EU:T:2023:589), by which the President, first, ordered suspension of the operation of Commission Decision C(2023) 2746 final of 25 April 2023 designating Amazon Store as a very large online platform (‘the decision at issue’) in accordance with Article 33(4) of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ 2022 L 277, p. 1), in so far as, pursuant to that decision, Amazon Services Europe Sàrl (‘Amazon’) must make the repository required by Article 39 of that regulation publicly available, without prejudice to the obligation for Amazon to compile that repository, and, second, dismissed Amazon’s application for interim measures as to the remainder.
Legal context
2 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1) provides, in Article 6(b) thereof:
‘In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
…
(b) the natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable’.
3 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) provides, in Article 5(1), (2) and (5) thereof:
‘1. Unfair commercial practices shall be prohibited.
2. A commercial practice shall be unfair if:
(a) it is contrary to the requirements of professional diligence,
and
(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers. …
5. Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same single list shall apply in all Member States and may only be modified by revision of this Directive.’
4 According to Annex I to that directive, misleading commercial practices are among the commercial practices deemed to be unfair in all circumstances. Under point 11 of that annex, ‘using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’ constitutes a misleading commercial practice.
5 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1) provides, in Article 15(1)(b) and (h) thereof:
‘The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information:
…
(b) the categories of personal data concerned;
…
(h) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.’
6 Article 5(1) of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ 2019 L 186, p. 57) is worded as follows:
‘Providers of online intermediation services shall set out in their terms and conditions the main parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to other parameters.’
7 Recitals 75, 76, 95 and 155 of Regulation 2022/2065 are worded as follows:
‘(75) Given the importance of very large online platforms, due to their reach, in particular as expressed in the number of recipients of the service, in facilitating public debate, economic transactions and the dissemination to the public of information, opinions and ideas and in influencing how recipients obtain and communicate information online, it is necessary to impose specific obligations on the providers of those platforms, in addition to the obligations applicable to all online platforms. …
(76) Very large online platforms and very large online search engines may cause societal risks, different in scope and impact from those caused by smaller platforms. Providers of such very large online platforms and of very large online search engines should therefore bear the highest standard of due diligence obligations, proportionate to their societal impact. …
…
(95) Advertising systems used by very large online platforms and very large online search engines pose particular risks and require further public and regulatory supervision on account of their scale and ability to target and reach recipients of the service based on their behaviour within and outside that platform’s or search engine’s online interface. …
…
(155) Since the objectives of this Regulation, namely to contribute to the proper functioning of the internal market and to ensure a safe, predictable and trusted online environment in which the fundamental rights enshrined in the Charter [of Fundamental Rights of the European Union (“the Charter”)] are duly protected, cannot be sufficiently achieved by the Member States because they cannot achieve the necessary harmonisation and cooperation by acting alone, but can rather, by reason of territorial and personal scope, be better achieved at [European] Union level, the Union may adopt measures …’
8 Article 26(1)(b) to (d) of that regulation provides:
‘Providers of online platforms that present advertisements on their online interfaces shall ensure that, for each specific advertisement presented to each individual recipient, the recipients of the service are able to identify, in a clear, concise and unambiguous manner and in real time, the following:
…
(b) the natural or legal person on whose behalf the advertisement is presented;
(c) the natural or legal person who paid for the advertisement if that person is different from the natural or legal person referred to in point (b);
(d) meaningful information directly and easily accessible from the advertisement about the main parameters used to determine the recipient to whom the advertisement is presented and, where applicable, about how to change those parameters.’
9 Article 33(1) and (4) of that regulation provides:
‘1. This Section shall apply to online platforms and online search engines which have a number of average monthly active recipients of the service in the Union equal to or higher than 45 million, …
…
4. The Commission shall, after having consulted the Member State of establishment or after taking into account the information provided by the Digital Services Coordinator of establishment …. adopt a decision designating as a very large online platform or a very large online search engine for the purposes of this Regulation the online platform or the online search engine which has a number of average monthly active recipients of the service equal to or higher than the number referred to in paragraph 1 of this Article. …’
10 Article 38 of the same regulation provides:
‘… providers of very large online platforms and of very large online search engines that use recommender systems shall provide at least one option for each of their recommender systems which is not based on profiling …’
11 Article 39(1) and (2) of Regulation 2022/2065 provides:
‘1. Providers of very large online platforms or of very large online search engines that...
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