Action brought on 1 March 2024 – Aylo Freesites v Commission
(Case T-138/24)
Language of the case: English
Parties
Applicant: Aylo Freesites LTD (Nicosia, Cyprus) (represented by: C. Thomas, A. Bray, A. Ghalamkarizadeh and J. Beckedorf, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul Commission decision C(2023) 8842 final of 20 December 2023 designating Pornhub 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’);
declare inapplicable Article 39 of Regulation 2022/2065, to the extent that it requires the advertisement repository to be made publicly available; and
order the Commission to pay the applicant’s costs.
Pleas in law and main arguments
In support of the action, the applicant relies on four pleas in law.
First plea in law, alleging that the Commission erred in law when applying Article 33(1) of Regulation 2022/2065 which determines the eligibility for designation as a very large online platform. Article 33(1) of Regulation 2022/2065, or the Commission’s application of that provision, fails to comply with the general principles of legal certainty and proportionality.
Second plea in law, alleging that, by rejecting the applicant’s monthly active recipients calculation, the Commission committed errors of fact and manifest errors of appreciation, failed to comply with its duty to state reasons, and infringed Article 33(4) of Regulation 2022/2065 and the principles of legal certainty and proportionality.
Third plea in law, alleging that, by designating the applicant on the basis of two specific third-party figures and methodologies, the Commission infringed Article 33(4) of Regulation 2022/2065 and the principles of legal certainty and proportionality, as well as the applicant’s right to a fair hearing and to a statement of reasons.
Fourth plea in law, alleging that Article 39 of Regulation 2022/2065 is illegal to the extent very large online platform providers must make their advertising repository publicly available. It unjustifiably interferes with the applicant’s freedom to conduct a business and its right to property, and discriminates against the applicant.
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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) (OJ 2022 L 277, p. 1).