Violeta Geru – Amazon case on interim relief following the application of DSA. Did the request for interim measures become even more burdensome for private entities seeking provisional relief? Will the national courts follow suit?

The dispute triggering the court proceedings

The EU institutions developed in the recent years a framework for regulating the online services. As such, new obligations arise for online operators following the issuance of the e-commerce Directive[1], GDPR[2], P2B Regulation[3], DSA[4], DMA[5], Ominbus[6], etc. DSA is one of the most comprehensive pieces of internet regulation, applying to the tech platforms and services, being in the spotlight for the last months for all online platforms which are still trying to figure out the impact on both the tech platforms and the consumers.

The DSA includes specific rules, whith additional obligations for very large online platforms („VLOP”) and search engines („VLOSE”), defined as online platforms and intermediaries that have more than 45 million users per month in the EU. The European Commission is to adopt a decision designating a VLOP or a VLOSE[7].

According to article 39(1) of DSA, providers of VLOP or VLOSE „that present advertisements on their online interfaces are required to compile and make publicly available in a specific section of their online interface, through a searchable and reliable tool that allows multicriteria queries and through application programming interfaces, a repository containing the information referred to in paragraph 2 of that article, for the entire period during which they present an advertisement and until one year after the advertisement was presented for the last time on their online interfaces” (the „publicly available repository of advertisements”).

By the decision issued on 25 April 2023, the Commission designated Amazon Store („Amazon”) as a VLOP. Amazon brought an action seeking annulment of the Commision decision, which is curently under settlement before the ECJ[8]. Separetely, Amazon filed a claim for interim measure for the President of the Court to order the suspension of operation of the decision in regards to (i) the obligation to provide users with an option for each of its recommender systems which is not based on profiling; (ii) the obligation to compile and make publicly available an advertisement repository, until a final ruling in the annulment claim is to be rendered by the ECJ.

The President of the General Court found that the conditions for applying interim measures are met

In regards to the conditions to be met cumulatively for ordering an interim relief pursuant to the ECJ case law (similar to the Romanian legislator and national case law), the following should be assessed:

• the order is justified, prima facie, in fact and in law (fumus boni juris) and that
• it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a ruling is reached in the main proceedings.
• Additionaly, based on the case-law, the judge hearing the claim for interim measures must, where appropriate, also weigh up the interests involved.

On the obligation to compile and make available an advertisement repository, Amazon argued that it will lead to the disclosure of confidential information which would cause serious and irreparable harm to its advertising activities and, by extension, to all its activities (the advertisement repository identifies advertisers, targeting parameters and the total number of customers that can be achieved through those parameters). Amazon also argued that third-party sellers will move their business to other sales channels, such as their own retail stores or other smaller online marketplaces which are not VLOPs, thus causing a loss of market share. In addition, Amazon mentioned that it will be difficult to prove causality of the impact of the advertisement repository on its business, thus any claim for damages which it might bring after the outcome of the main proceedings would be devoid of purpose.

The President of the Court found the condition related to urgency to be met:

• for the purposes of the examination of the condition relating to urgency, the information at issue must be regarded as being confidential, while also holding that the question of whether the advertisement repository will require the disclosure of confidential information of both the applicant and its advertisers falls within the scope of the assessment of a prima facie case. Therefore, the Court held that the obligations relating to the advertisement repository allows third parties to access significant trade secrets, reveales strategic information, allowing competitors and the applicant’s advertising partners to draw market insights on an ongoing basis, to the detriment of the applicant and its advertising partners. As such, the harm alleged by Amazon was considered sufficiently serious.
• the harm is also irreparable, since once a person has acquired knowledge of that information by reading it, that knowledge cannot be taken back.

On the prima facie condition, the President of the General Court held that it is satisfied where at least one of the pleas put forward by Amazon in support of the main action appears, prima facie, to be not unfounded. Amazon argued an infringement of the principle of equal treatment stating that the obligation to make available an advertisement repository constitutes a disproportionate restriction on the rights enjoyed under the Chapter[9].

The President of the General Court held that, at least prima facie, some of the information required to be disclosed under DSA has not yet been made publicly available pursuant to other EU Laws, contrary to the Commision defense. Thus, it was held that the plea relied on by Amazon does not lack a serious basis and therefore calls for a detailed examination within the annulment claim.

Third, after concluding that the two mandatory conditions for ordering the interim relief were met, the President of the General Court also weighed up the interests involved. The Court noted that in Amazon case a ruling annuling the Commision Decision would be rendered illusory and deprived of practical effect, since the operation thereof allows the immediate disclosure of the information at issue.

In a recent ruling, the Vice-President of the Court overturned the order for interim relief issued by the President of the General Court

European Commision, supported by the European Parliament and the Council of the European Union filed an appeal against the order issued by the President of the General Court. On 27.03.2024, the Vice-President of the Court upheld the appeal and dismissed the request for interim relief.

The condition related to the establishment of a prima facie case is satisfied, following the line of argumentation related to plea of illegality of Article 39 of DSA.

On the condition related to the urgency:

• the Vice-President of the Court dismissed Amazon’s argument related to the loss of market share, given that it did not present enough evidence for proving the existence of obstacles of a structural or legal nature preventing it, in the event of annulment of the decision at issue, from regaining a significant proportion of any market share lost following the making publicly available of the repository.
• The damage must be regarded as serious, in the light of the variety of the precise commercial information which is meant to appear in the repository.
• The harm that is liable to be suffered by Amazon due to the publication of its business secrets would make it impossible to identify the number and status of all those who in fact had knowledge of the published information and thereby assess the consequences that the publication of that information might have on Amazon’s commercial and financial interests. That uncertainty is such as to demonstrate that the pecuniary damage alleged is irreparable.

After concluding that the two cumulative conditions for granting the interim relief were met, the Court assessed the balancing of interests and stated that the interests defended by the EU legislature prevail, in the present case, over Amazon’s material interests:

• The obligation to compile the repository must be continuously updated, therefore the annulment would ensure that the advertisers returned to a more attractive business environment and to enable Amazon to develop new strategies in the management of its advertising activities;
• It is not apparent that the application of DSA obligation would jeopardize Amazon existence or long-term development (an exposure to ceasing the operations was not demonstrated, the existence of a significant and lasting risk of market share was not established), considering also that Amazon’s revenue from its advertising activities represents only 7% of its overall revenue, thus limiting the possibilities of developing advertising strategies would have a direct effect only on a limited part of Amazon activities;
• DSA is a central element of the policy developed by the EU legislature in the digital sector, pursuing objectives of great importance. Although the court held that the Commission has not claimed that the stay of application of DSA would be such as to impede definitely the achievement of such objectives, however it must be considered that granting the suspension would lead to a delay in the full achievement of those objectives, while also making Amazon subject to a regime different from that applicable to other players in that sector – the suspension would be liable to alter the competitive situation in the digital sector.

It is apparent from the above argumentation that in Amazon case, the appeal ruling is imposing a near impossible burden of proof regarding an order for interim relief. Although the court considered that Amazon plea meets both the urgency and prima facie conditions, in assessing the balancing of interests it required Amazon to prove an exposure to ceasing its entire operations following the application of DSA. The Court considered the objectives of the DSA and stated that a delay in the full achievement of those objectives might render Amazon in a more favourable position on the market.

However, it is debatable whether the alleged favourable position on the market following an order for interim suspension must be regarded in such a way as to impede the application for interim relief, given that Amazon has successfully demonstrated the two conditions related to urgency and prima facie case.

The President of the General Court ruling, which was overturned, seems more justified, as it allows for the procedure for interim relief to be relied on by private entities, without putting on their shoulders an almost impossible burden of proof.

Given that the domestic case-law was already very strict in regard to claims for interim relief and relied on the balancing of interest in very few cases, the rulings rendered in Amazon case might just give the Romanian Courts a new justified reason to dismiss such claims, considering that most of the decisions issued by public authorities are related to public policy legislation.

However, the assessment of the balancing of interests seems rather subjective given the two different approaches. The key takeaways from Amazon case should be: (i) the industry players should conduct a thorough analysis of the impact of each new piece of legislation on their businesses; (ii) the private entities should be encouraged to seek interim relief and the annulment, if the case, of the obligations that would prejudice a coherent business environment.

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[1] 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’)

[2]  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)

[3] 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

[4] 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

[5] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act)

[6] Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules

[7] Article 33(4) of Regulation 2022/2065

[8] See Case T-367/23, Amazon Services Europe v Commission

[9] Articles 7, 16 and 17 of the Charter. Article 7 of the Charter provides that everyone has the right to respect for his or her private and family life, home and communications. Article 16 of the Charter, for its part, provides that the freedom to conduct a business in accordance with EU law and national laws and practices is recognised.