Action brought on 15 April 2024 – Zalando v Commission
(Case T-203/24)
Language of the case: German
Parties
Applicant: Zalando SE (Berlin, Germany) (represented by: R. Briske, J. Trouet, K. Ewald and L. Schneider, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul the (implicit) decision of the European Commission rejecting the applicant’s confirmatory application, reference number EASE 2023/6032;
order the defendant to pay the costs.
Pleas in law and main arguments
In support of the action, the applicant relies on four pleas in law.
First plea in law: infringement of the right of access to documents under Article 2 of Regulation (EC) No 1049/2001 1
The applicant claims that:
the defendant erred in rejecting its initial and confirmatory applications and relied on the irrelevant exceptions in Article 4(2) and (3) of Regulation No 1049/2001.
No commercial interests of a natural or legal person prevent publication of the documents, as the potentially affected undertaking is the applicant itself. In addition, the fact that the documents did not originate from the applicant itself and it never relied on their confidentiality precludes application of the exception. On the contrary, the requested documents concern, for the most part, information that relates to the number of average monthly active recipients of the applicant’s service within the European Union for the formula laid down in Article 4(1) of Commission Delegated Regulation (EU) 2023/1127 1 for determining the supervisory fee in accordance with Article 43 of Regulation (EU) 2022/2065. 2 As that number must, by law, be published in accordance with Article 24(2) of Regulation (EU) 2022/2065, the underlying steps in the calculation cannot be confidential.
Moreover, the determination of the supervisory fee is not an ‘investigation’ for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001. The defendant is not stating a position and is not investigating a potential infringement of Regulation 2022/2065. Rather, it is a mathematical calculation and data analysis.
There is also no presumption of refusal of access, as the precedents in the case-law are not relevant and the case of determining fees under Regulation 2022/2065 is not comparable to those precedents.
As the procedure concerning the fee notice was closed at the latest by payment by the applicant, the first subparagraph of Article 4(3) of Regulation No 1049/2001 is also not relevant.
Last, the defendant cannot rely on the second subparagraph of Article 4(3) of Regulation No 1049/2001, as publication would not seriously undermine the defendant’s decision-making process: the information relates to the service provided by the applicant and was for the most part collected and processed by commercial third parties.
Second plea in law: infringement of the obligation to state reasons
The applicant claims that the defendant infringed the obligation to state reasons laid down in Article 296 TFEU in its decision, with the result that the applicant, as addressee, was unable to understand the decision. In its first rejection, the defendant did not examine a single document in specific terms, but refused publication overall on the basis of spurious arguments raised in favour of a presumption of refusal of access.
Third plea in law: breach of the fundamental right of access to documents
According to the applicant, by its unlawful refusal, the defendant also infringed the applicant’s fundamental right of access to documents under Article 42 of the Charter of Fundamental Rights of the European Union. 1
Fourth plea in law: breach of the fundamental right to good administration
The applicant claims, at the same time, that the defendant infringed its fundamental right to good administration under Article 41(2)(b) of the Charter of Fundamental Rights of the European Union, in that the defendant, by its overall rejection, completely failed to take into account the applicant’s role as affected undertaking.
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1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
1 Commission Delegated Regulation (EU) 2023/1127 of 2 March 2023 supplementing Regulation (EU) 2022/2065 of the European Parliament and of the Council with the detailed methodologies and procedures regarding the supervisory fees charged by the Commission on providers of very large online platforms and very large online search engines (OJ 2023 L 149, p. 16).
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).
1 OJ 2012 C 326, p. 391.