Action brought on 29 February 2024 – Technius v Commission
(Case T-134/24)
Language of the case: English
Parties
Applicant: Technius LTD (Limassol, Cyprus) (represented by: T. Bosch and T. Kraul, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
declare the application admissible;
annul Commission decision C(2023) 8844 final of 20 December 2023 designating Stripchat as a very large online platform in accordance with Article 33(4) of Regulation (EU) 2022/2065 of the European Parliament and of the Council 1 (‘the contested decision’); and
order the Commission to pay the costs.
Pleas in law and main arguments
In support of the action, the applicant relies on six pleas in law.
First plea in law, alleging an infringement of Article 33(4) of Regulation 2022/2065 and of the principle of sound administration:
the defendant based the contested decision on own estimations of the number of active recipients of the applicant’s service Stripchat (‘Stripchat’). The data retrieved by the defendant from a third-party source is evidently inconsistent and incorrect. For example, in one state, the number of estimated users of Stripchat is greater than the entire population;
the defendant thus violated its duty of care to examine all the facts of the case carefully and impartially. The defendant did not verify the accuracy and consistency of the data used, did not follow up on obvious clues that the used data is not sufficiently reliable and did not use readily available alternative sources to check the plausibility of the used data;
as a result, the defendant wrongly assumed that Stripchat has more than 45 million average monthly active recipients in the Union.
Second plea in law, alleging an infringement of Article 296(2) TFEU and of the duty to state reasons, in that the contested decision does not state the principal facts and considerations upon which it is based. The contested decision merely rejects the calculation of active recipients done by the applicant and states a different number of active recipients, without disclosing the source of such number or the methodology used.
Third plea in law, alleging an infringement of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of the right to be heard, in that the applicant was given an unreasonably short time period to review, verify and respond to the number of active recipients provided in the preliminary findings by defendant. The applicant was therefore unable to provide alternative data, rendering the right to be heard de facto meaningless.
Fourth plea in law, alleging an infringement of the principle of legal certainty in that Article 33(1) and (4) of Regulation 2022/2065 lacks a sufficiently clear, precise and predictable definition of “average monthly active recipients of the service in the Union” and the defendant did not adopt a delegated act to clarify the methodology to be used by the service providers.
Fifth plea in law, alleging an infringement of Article 2 TFEU, Article 20 of the Charter and of the principle of equal treatment n that the legal uncertainty on how to calculate the number of “average monthly active recipients of the service in the Union” leads to an arbitrary application of the threshold for designating very large online platforms set out in Article 33(1) of Regulation 2022/2065.
Sixth plea in law, alleging an infringement of Article 16 of the Charter and of the principle of proportionality in that the due diligence obligations imposed on very large online platforms disproportionately violate the applicant’s fundamental rights because Stripchat does not pose the systemic risks and harms of very large online platforms that Regulation 2022/2065 intends to address.
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1 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) (JO 2022 L 277, p. 1).