The European Union’s General Court on 7 October 2026 dismissed Zalando’s attempt to see how Brussels calculated the bill it sends the online fashion retailer every year under the Digital Services Act. The judgment in Case T-203/24 leaves the largest designated platforms in the position of paying a regulatory levy whose underlying arithmetic they are not entitled to inspect.
The ruling is narrow in form and broad in consequence. It settles an access-to-documents question, not the legality of the fee itself. But it removes the evidentiary route that Zalando and several of its peers had hoped to use in the separate annulment cases now pending over the supervisory fee.
In short
- Case T-203/24 dismissed: the General Court’s Eighth Chamber rejected Zalando’s action for access to the Commission documents behind its DSA supervisory fee calculation.
- Two exceptions carried the day: judges found disclosure would damage the commercial interests of the third-party data suppliers and would undermine the Commission’s defence in related, still-live litigation.
- No overriding public interest: Zalando failed to clear the balancing test that Regulation 1049/2001 attaches to both exceptions.
- The number gap stays unexplained: Zalando was designated a very large online platform on 83.341 million average monthly active recipients, yet its 2023 fee rested on 47.5 million.
- The fee fight is far from over: Zalando’s annulment action over the fee itself (T-92/26) is pending, and its appeal against VLOP designation sits at the Court of Justice as C-724/25 P.
What the General Court decided on October 7
The Eighth Chamber of the General Court delivered its judgment in Zalando v Commission (T-203/24) on 7 October 2026, dismissing the action in its entirety. According to MLex, which reported the outcome on the day, the judges concluded that releasing the contested documents would harm the commercial interests of the data suppliers whose figures fed the calculation, and would prejudice the Commission’s legal position in proceedings that remain under way. EU Law Live reported the same disposal, describing the case as one about access under Regulation (EC) No 1049/2001 to documents on the calculation of the supervisory fee provided for in Article 43 of Regulation (EU) 2022/2065.
The judgment was published first in French, as General Court rulings routinely are before translation into the other official languages. The case reference was confirmed by both publishers as T-203/24. Neither account indicates that the Court examined the substance of the fee methodology, which was not the question before it.
Zalando had asked the Court to annul what the Official Journal notice of the action describes as the Commission’s implicit decision rejecting its confirmatory application, carried under the internal reference EASE 2023/6032, and to order the Commission to pay costs. The action was brought on 15 April 2024, meaning the retailer waited close to thirty months for an answer.
The four pleas Zalando ran
Per the published notice of the action, Zalando advanced four grounds. The first alleged infringement of the right of access to documents under Article 2 of Regulation (EC) No 1049/2001, the core entitlement that any EU citizen or EU-established company holds over institutional records.
The second alleged breach of the obligation to state reasons, the standard administrative-law complaint where an institution refuses a request without spelling out why each withheld document falls inside an exception. The third and fourth escalated the same arguments to constitutional level, invoking the Charter of Fundamental Rights on access to documents and, under Article 41(2)(b), the right to good administration, which includes a person’s right of access to their own file.
That fourth plea is the one with the sharpest commercial edge. Zalando’s position, in substance, was that a company facing a bill cannot be told that the file supporting the bill is confidential. The Court was not persuaded.
Why the court-proceedings exception mattered so much
Regulation 1049/2001 sets out its refusal grounds in Article 4. Two sit in Article 4(2): protection of the commercial interests of a natural or legal person, and protection of court proceedings and legal advice. Both are qualified exceptions, meaning an institution must still disclose where there is an overriding public interest in doing so.
Reporting on the judgment indicates that the Commission successfully relied on both. The commercial-interests limb protected the suppliers of the audience data. The court-proceedings limb protected the Commission’s own defence in the parallel fee litigation, a category of cases that did not exist when Zalando first filed its request in October 2023 but has since multiplied.
The practical effect is circular in a way that will frustrate platform counsel. The existence of litigation over the fee became a reason to withhold the documents that would inform litigation over the fee.
Why Zalando wanted the Commission’s working papers
Zalando asked for access on 13 October 2023, shortly after the Commission issued its provisional determination of the 2023 supervisory fee. The request was aimed squarely at the inputs: how the Commission arrived at the recipient count that drives the size of each platform’s bill.
The company has been consistent in public about its objection. It argues that the fee regime is distorted by an overestimate of how many people actually use the parts of its service that the DSA regulates. Zalando’s case is that most visitors come for its own first-party retail assortment, which it says is not hosted third-party content and therefore sits outside the scope of the obligations the fee is meant to fund.
For a retailer that operates both as a shop and as a marketplace, that distinction is the whole argument. The broader compliance picture for operators in this position is set out in our explainer on EU Digital Services Act duties for online marketplaces, which separates the obligations that attach to hosting from those that attach to selling.
The hybrid retailer problem
Zalando is not a pure intermediary. It buys stock, holds inventory, and sells it under its own name, while also running a Partner Programme through which brands and retailers list directly to Zalando customers. The two inventories appear on the same product pages and in the same search results.
In the designation litigation, Zalando argued that only around 30 million users engaged with Partner Programme listings, against the 83 million the Commission counted across the whole site. The General Court rejected that split on 3 September 2025 in Case T-348/23, holding that identical product pages made exposure to first-party and third-party content impossible to separate in practice.
That reasoning is now the governing authority on the point, and Zalando has taken it to the Court of Justice as Case C-724/25 P. Amazon ran a related designation challenge in Case T-367/23 and lost in November 2025.
How the DSA supervisory fee is actually calculated
Article 43 of the DSA requires the Commission to charge providers of very large online platforms and very large online search engines an annual supervisory fee. The fee is designed to be cost-recovering rather than punitive: it covers the Commission’s estimated expenses for designation procedures, database and information-system maintenance, and the oversight tasks the regulation assigns it.
Each designated service is charged separately, which is why a company with two designated services pays twice. Article 43(5) sets the allocation key: the fee must be proportionate to the average monthly active recipients in the Union of each designated service, and must take account of the previous year’s costs.
The same paragraph imposes a hard ceiling. The overall annual supervisory fee charged on a given provider cannot exceed 0.05% of its worldwide annual net income. For the very largest platforms the cap is academic; for mid-sized designated services it can bind.
Article 43(4) is the provision that has caused the Commission the most trouble. It empowers the Commission to adopt delegated acts laying down the detailed methodology and procedures. The Commission adopted a delegated regulation on the fee framework in March 2023, but did not put the recipient-counting methodology inside it. The authoritative statement of the regime, including the cost-recovery logic and the cap, is available on the EUR-Lex summary of the DSA supervisory fee rules.
Where the audience numbers come from
The Commission did not build its own measurement panel. According to the General Court’s account in the Meta and TikTok fee cases, it relied on data provided by two third-party operators, Sensor Tower and Similarweb, and applied a common methodology across all designated platforms and search engines.
That choice is the hinge of the confidentiality finding. The vendors’ panels, weighting models and coverage assumptions are the products they sell, and the Court accepted that exposing them would damage their commercial position.
It also explains why the dispute is unusually hard to settle. Zalando is not asking the Commission to show its own spreadsheet so much as asking it to publish a licensed third-party dataset and the adjustments made to it.
The two numbers at the heart of the dispute
The arithmetic that Zalando objects to can be stated in three figures. The DSA designation threshold under Article 33 is 45 million average monthly active recipients in the Union, calculated as a monthly average over six months.
Zalando published 83.341 million average monthly active recipients in early 2023, in line with the DSA’s transparency requirement, and the Commission relied on that self-reported figure when it designated the company a very large online platform on 25 April 2023. When it came to the provisional 2023 fee, the Commission instead used 47.5 million.
Both numbers cannot be describing the same thing. One is nearly double the designation threshold; the other clears it by about 2.5 million, a margin of roughly 5%.
Why the gap is commercially material
If the fee is proportionate to recipients, then the recipient number is the price. A platform assessed on 47.5 million pays a materially smaller share of the annual pot than one assessed on 83.341 million, so on its face the lower figure works in Zalando’s favour.
The company’s complaint is about coherence rather than quantum alone. If 47.5 million is the right measure of DSA-relevant exposure, Zalando argues, then the 83.341 million used to pull it into the regime in the first place was the wrong one, and the designation should fall with it.
That is the argument the General Court declined to accept in September 2025, when it held that the two uses of the concept did not need to produce identical operational outputs for the designation to stand. It is also the argument Zalando is now running in a different register at the Court of Justice.
Why the Court said the concept must be uniform
The tension did not go unnoticed by the judges. In the fee cases the General Court stated that the average monthly active recipients figure is both an essential element of the methodology for determining the supervisory fee and a concept which must be understood uniformly and consistently throughout the DSA.
That sentence is the strongest judicial support Zalando has. It says, in effect, that one definition should serve both designation and billing.
What the Court did not do was convert that principle into an annulment of the designation. It applied it to the fee instead.
Why the Meta and TikTok precedent cuts the other way
On 10 September 2025 the General Court annulled the Commission implementing decisions that had set the 2023 supervisory fee for Facebook, Instagram and TikTok, in Cases T-55/24 and T-58/24. The defect was constitutional rather than numerical: because the recipient-counting methodology is an essential element of the fee determination, Article 43(4) required it to be laid down in a delegated act, not improvised inside individual implementing decisions.
The Court then softened the blow. It maintained the effects of the annulled decisions for up to twelve months, so that the Commission could adopt proper delegated legislation and issue fresh implementing decisions without the 2023 fee simply evaporating.
That twelve-month shelter ran out around 10 September 2026, roughly four weeks before the Zalando access judgment. Commentary on the judgments has noted that in the absence of a delegated act, providers are left to choose a reliable methodology for calculating recipients themselves, which is an awkward position for a regime built on comparability.
A win on legal basis is not a win on transparency
Meta and TikTok won without ever seeing the underlying data. Their victory turned on the instrument the Commission used, not on whether the numbers were right.
The October 7 judgment confirms that the two questions are being handled separately, and that the transparency route is closed while the legality route stays open. Platforms can still attack how the fee was adopted. They cannot, on this ruling, compel the Commission to show the audience data that fixes its size.
For Zalando specifically, that means the strategic value now sits almost entirely in Case T-92/26, the annulment action it filed on 9 February 2026 after Meta, Google, Amazon, TikTok and Stripchat had filed theirs.
What the ruling means for marketplace operators
Most retail and e-commerce businesses will never be designated a very large online platform, and the fee will never touch them. The ruling still matters to them, for two reasons.
The first is precedential. The Commission has now established that data licensed from commercial measurement vendors can be used to impose a financial obligation while remaining shielded from disclosure, with litigation itself supplying a further shield. That logic is portable to other EU regimes that rely on bought-in audience or market data.
The second is operational. Designation under the DSA is a threshold mechanism, and a hybrid retailer that grows its marketplace side can cross it without intending to, as the Temu action plan deadline sequence has already shown for faster-moving platforms.
The compliance cost most retailers underestimate
The fee is not the expensive part of designation. Risk assessments, independent audits, researcher data access, recommender-system transparency and an ad repository are all recurring obligations that require permanent staffing.
Industry estimates put annual designated-platform compliance costs well above the fee itself for most operators, and the fee has never exceeded the low tens of millions of euros across the entire designated population. A business planning for designation should budget for the programme, not the invoice.
What the October 7 judgment removes is any expectation of being able to audit the invoice. That is a governance problem for finance teams who are required to substantiate accrued regulatory liabilities.
What to do if you are approaching the threshold
The first step is to measure recipients the way the regulation defines them rather than the way marketing dashboards do. The DSA counts average monthly active recipients of the service in the Union, which is neither registered accounts nor sessions.
The second is to separate hosted third-party content from first-party content at the page level, not just in the data warehouse. Zalando’s designation loss turned precisely on the fact that it could not do so on the surface a user actually sees.
The third is to publish the figure on time and keep the working. Article 24(2) requires designated-threshold publication, and a self-published number becomes evidence against you, as it did here.
How the fee compares across designated platforms
The supervisory fee is a single annual pot, divided across designated services. Its size tracks the Commission’s own DSA enforcement spending, which has grown as the regime matured.
| Fee year | Amount charged or collected | USD equivalent at EUR/USD 1.1252 | Costs covered |
|---|---|---|---|
| 2023 | EUR 45.24m collected | about USD 50.9m | First year of DSA supervision |
| 2024 | EUR 58.2m charged | about USD 65.5m | Commission’s 2025 enforcement costs |
| 2025 | EUR 54.8m received | about USD 61.7m | Commission’s 2026 enforcement costs |
Against that, Agence Europe has reported that the Commission spent EUR 46.1 million (about USD 51.9 million at current rates) on application of the DSA in 2025. The gap between what is charged and what is spent is the mechanism Article 43(5) intends, since the fee is set on a prior-year cost basis.
The split between platforms has only ever been reported in indicative terms for the first fee year. The figures below reflect published estimates for 2023 and should be read as approximations rather than invoiced amounts.
| Provider | Reported 2023 fee | USD equivalent | Share of the pot |
|---|---|---|---|
| about EUR 22m | about USD 24.8m | roughly half | |
| Meta | about EUR 11m | about USD 12.4m | roughly a quarter |
| TikTok | about EUR 3.8m | about USD 4.3m | about 8.5% |
| Apple | about EUR 3m | about USD 3.4m | about 7% |
| Microsoft | about EUR 2.7m | about USD 3.0m | about 6% |
| Booking.com | about EUR 1.45m | about USD 1.6m | about 3% |
| Zalando | not publicly reported | not publicly reported | not publicly reported |
Zalando’s own figure has never been published, which is itself part of the grievance. The company is litigating the size of a bill that outside observers cannot verify and that it says it cannot reconstruct.
What this adds to the EU’s marketplace enforcement record
The fee litigation runs in parallel with a much louder enforcement track. Over 2026 the Commission turned its DSA attention from social platforms to online marketplaces, and the penalties escalated quickly.
| Platform | Action | Amount | Status |
|---|---|---|---|
| AliExpress | DSA fine over illegal and unsafe goods | EUR 550m (about USD 619m) | Action plan due 20 October 2026 |
| Temu | DSA fine on the risk-assessment strand | EUR 200m (about USD 225m) | Three of four strands still open |
| Shein | Formal proceedings | No fine issued | Illegal products, addictive design, recommender transparency |
| Zalando | Fee and designation litigation | Fee amount undisclosed | T-203/24 dismissed; T-92/26 and C-724/25 P pending |
The AliExpress penalty, covered in detail in our report on the record EUR 550m DSA fine against AliExpress, found that the platform had failed to assess and mitigate the risk of illegal, unsafe and counterfeit goods spreading through its service. Investigators reported that dangerous toys, unsafe cosmetics and counterfeit items remained live for weeks and that penalised sellers often kept trading.
The Temu decision closed only one of four investigation strands opened in October 2024. Proceedings covering addictive design features, recommender-system transparency and researcher data access remain under way.
Set against fines of that size, a supervisory fee of a few million euros looks trivial. The two tracks are nonetheless linked: the fee funds the apparatus that issues the fines, which is exactly why platforms want to see how it is apportioned.
Where this leaves Zalando’s own business case
Zalando has spent three years arguing that it is being regulated as a platform while earning most of its money as a retailer. The commercial logic of that position has, if anything, strengthened since the designation decision.
Per its own second-quarter 2026 reporting, the group’s business-to-business arm generated revenue of EUR 335 million (about USD 377 million at current rates), up 27.6% year on year, with adjusted EBIT of EUR 41 million at a 12.2% margin. That segment bundles logistics and software services sold to other brands and retailers rather than consumer-facing marketplace hosting.
The company credits part of that margin improvement to a richer mix of software-as-a-service revenue. None of it is the kind of user-generated or third-party-listing exposure the DSA was written to police.
That mismatch is the strategic cost of losing the transparency case. Zalando now has to explain to investors a regulatory charge whose size it cannot reconcile to any segment of its own reporting.
The accounting problem a sealed file creates
Companies are required to recognise and disclose regulatory liabilities that are probable and measurable. A fee set by a formula the payer cannot inspect is measurable only in the sense that an invoice arrives.
Auditors generally accept a demand from a public authority as sufficient evidence of the amount owed, so there is no immediate reporting crisis. The difficulty appears when a company has to assess whether to provide for a contingent reversal, as Meta and TikTok had to do after their fee decisions were annulled with effects maintained.
Zalando’s pending action in Case T-92/26 creates exactly that contingency. Without the underlying documents, the company is estimating the probability of winning a case about numbers it has not seen.
What happens next: three dates to watch
The first is the appeal window. An appeal against a General Court judgment must be lodged within two months and ten days of notification, which places Zalando’s deadline in roughly mid-December 2026. The company has appealed before, so a further escalation to the Court of Justice cannot be ruled out.
The second is the AliExpress action plan, due on 20 October 2026. That filing will show how a designated marketplace proposes to fix a risk-assessment failure at scale, and it will set the template other marketplaces are measured against.
The third is the delegated act. Until the Commission puts the recipient-counting methodology into a delegated act, every fee decision built on the old approach carries the defect the General Court identified in September 2025, and every designated provider has grounds to contest its bill.
The structural question nobody has answered
The DSA treats recipients as a single concept serving two functions: deciding who is in scope, and deciding who pays what. Zalando’s case has demonstrated that the same concept can produce 83.341 million for one purpose and 47.5 million for the other without the regime noticing.
A delegated act could fix that by defining the measurement once. It could also entrench the divergence by specifying different methods for designation and for billing.
Platform operators tracking the wider EU rulebook will recognise the pattern from the Digital Markets Act, where Google’s removal of free product listings in Europe showed how quickly a definitional choice reshapes commercial behaviour. The same risk applies here.
Why more fee challenges are likely
Six providers have now filed annulment actions over the supervisory fee: Meta, Google, Amazon, TikTok, Stripchat and Zalando. That is a meaningful share of the designated population, and the September 2025 judgments gave all of them a usable legal basis.
The October 7 ruling narrows their discovery options but does not weaken that basis. If anything, a confidentiality finding makes the procedural argument more attractive, because it is the one that can be won on the file as it stands.
Our forecast on the next major DSA penalty on Chinese marketplaces sets out why enforcement intensity is likely to rise through the first quarter of 2027. A busier enforcement docket means a larger fee pot, and a larger pot means more disputes about how it is divided.
Frequently asked questions
What exactly did Zalando lose on 7 October 2026?
It lost an access-to-documents case. The General Court’s Eighth Chamber dismissed Case T-203/24, in which Zalando sought the Commission records underlying the calculation of its DSA supervisory fee under Regulation (EC) No 1049/2001. The Court did not rule on whether the fee itself is lawful.
Why did the Court refuse disclosure?
According to reporting on the judgment, the Court accepted two exceptions: releasing the documents would harm the commercial interests of the third-party data suppliers, and would prejudice the Commission’s defence in related litigation that is still pending. Zalando did not establish an overriding public interest in disclosure.
How is the DSA supervisory fee calculated?
Article 43 of the DSA requires an annual fee per designated service, set to recover the Commission’s estimated supervision costs and allocated in proportion to each service’s average monthly active recipients in the Union. Article 43(5) caps the total charged to any one provider at 0.05% of its worldwide annual net income.
Why does Zalando say the fee is wrong?
It argues the recipient count is inflated because it includes visitors to its own first-party retail business, which Zalando says is not hosted third-party content and therefore falls outside the DSA obligations the fee funds. It also points to the inconsistency between the 83.341 million figure used for designation and the 47.5 million used for the fee.
Did Meta and TikTok win their fee cases?
Yes, on 10 September 2025 in Cases T-55/24 and T-58/24. The General Court annulled the implementing decisions setting their 2023 fee because the recipient-counting methodology should have been laid down in a delegated act under Article 43(4), not in individual decisions. The Court maintained the decisions’ effects for up to twelve months.
Is Zalando still designated a very large online platform?
Yes. The General Court upheld the designation in Case T-348/23 on 3 September 2025, finding that identical product pages made first-party and third-party exposure impossible to separate. Zalando has appealed to the Court of Justice as Case C-724/25 P.
How much does the DSA fee raise in total?
Reported totals are EUR 45.24 million collected for 2023, EUR 58.2 million charged in 2024 to cover 2025 costs, and EUR 54.8 million received in 2025 to cover 2026 costs. At EUR/USD 1.1252 that is roughly USD 50.9 million, USD 65.5 million and USD 61.7 million respectively.
Can Zalando appeal this ruling?
An appeal to the Court of Justice must be lodged within two months and ten days of notification of the judgment, which places the deadline around mid-December 2026. Appeals on access-to-documents cases are limited to points of law.
Does this affect retailers that are not designated platforms?
Not directly, because the fee only applies to designated very large online platforms and search engines. Indirectly it matters, because the ruling confirms that licensed third-party audience data can support a binding financial obligation while staying confidential, and because hybrid retailers can cross the 45 million recipient threshold as their marketplace side grows.