On 14 October 2026, the European General Court published its judgment in Case T-134/24 Technius v Commission following an application by Technius Ltd, provider of online platform Stripchat, to annul the decision of the European Commission to designate Stripchat as a Very Large Online Platform (“VLOP”) under Article 33 of Regulation 2022/2065, the Digital Services Act (the “DSA”). Technius Ltd raised a number of pleas relating to the Average Monthly Active Recipient (“AMAR”) figures used by the Commission in reaching their designation decision.
Background
Article 33 DSA provides that any online platform with equal to or higher than 45 million AMARs in the EU may be designated as a VLOP. Chapter III Section 5 DSA provides for a range of additional obligations for providers of VLOPs, as well as Very Large Online Search Engines (“VLOSEs”). In May 2023, Technius Ltd submitted its AMAR figures for its online platform, submitting a figure of ~31 million AMARs. These figures were calculated by taking the total visitor numbers, carrying out a de-duplication process to exclude visitors which accessed the site from multiple devices, and then applying a “bounce rate” of 49% (calculated with reference to total visitors) to exclude visitors who only visited one page on the online platform without interacting further.
The Commission did not accept these figures, on the basis that the number of “unique visitors”, which included only visitors with a minimum number of active daily visits during the month concerned, already sufficiently excluded “bounced” visits, and it was inappropriate to further apply the “bounce rate” in the manner done. This reasoning resulted in the Commission publishing a designation decision in September 2023 based on an AMAR figure of ~62 million.
Judgment of the European General Court
AMAR calculations and de-duplication
Neither the DSA, or the Commission, require a specific methodology for calculating AMARs. The Commission is empowered by Article 33(3) DSA to adopt a delegated act to lay down the methodology for calculating the number of AMARs, however no such delegated act has been adopted to date (as will be discussed further below). However, this lack of required methodology does not preclude the Commission from rejecting the AMAR figures provided by an online platform provided that sufficient reasons are provided.
The General Court found that it was within the Commission’s power to dis-apply the “bounce rate” applied by Technius Ltd where the “bounce-rate” over-represented the number of inactive users provided that a sufficient statement of reasons was provided. The Commission was also not found to be required to take steps to “cleanse” the data by carrying out additional analysis as to the correct “bounce rate” and the use of VPNs in circumstances where this analysis was not carried out by the provider. This highlights the importance for providers to ensure an accurate and defensible methodology is used in calculating AMARs, and a clear record of this methodology is maintained. Where steps are taken to de-duplicate users, it should be ensured that this does not result in an excessive removal of legitimate users.
Amended AMAR figures
Subsequent to the designation decision, in August 2024, Technius Ltd updated their methodology and found the accurate AMAR figures for the period in question (being September 2022 – February 2023) were ~37 million AMARs. The General Court found that this subsequent amendment had no retroactive effect on the designation decision, which is to be based on the data reported to the Commission up to the date of the decision.
The validity and legality of the decision can only be based on the facts at the date of the decision, not on subsequently amended data, as this would create significant legal uncertainty. This concern would be amplified by the nature of the AMAR figures, which are subject to ongoing developments and to the volatility of the algorithms which produce them. Providers should ensure that, to the best of their ability, AMAR figures are correct at the point that they are required to submit them to the relevant regulator.
Use of Google Trends to verify AMARs
It was suggested by Technius Ltd that cross-referencing the AMAR figures relied on by the Commission with other publicly available data, such as Google Trends, would have demonstrated that the AMAR figures were not reflective of the actual number of users of the online platform. This argument was rejected by the General Court. These data sources were not relied on by Technius Ltd during the administrative procedure leading up to the designation decision, and therefore it cannot be said that the Commission was required to refer to this data. Furthermore, Google Trends specifically was discounted as a relevant source for AMARs as it reflects only Google searches, and does not include visitors who accessed the site by other means such as via the URL of the page to be visited.
Right to be heard
Technius Ltd submitted that the 10 working day period in which they were required to submit their views on the preliminary findings of the Commission, as provided for in Article 33(4) DSA, was not sufficient and represented a breach of their right to be heard. Again, the General Court rejected this plea, stating that the 10 working day period was not insufficient as the providers should have already collected the necessary information to respond and calculated the AMARs of the online platform pursuant to Article 24(2) DSA. Therefore, the 10 working day period continues to apply going forward.
Legal certainty
Finally, the General Court found that principle of legal certainty is not breached by the lack of methodology prescribed by the Commission to calculate AMARs pursuant to Article 33(3) DSA. Legal certainty does not require that every rule should remove all doubt as to how it is interpreted. The fact that the DSA allows for the adoption of a delegated act to establish methodology does not, in itself, establish that the lack of a delegated act creates impermissible ambiguity. The lack of set methodology allows for platforms to have some degree of discretion in determining the reliable method most suitable to their specific circumstances.
Next steps
The judgment remains open to appeal by the intermediary service provider on points of law for two months and ten days from the date of the judgment. Subject to any appeal, the judgment of the General Court has important implications not just for VLOPs and VLOSEs, but for any online platform / online search engine which is required to calculate its AMARs.
It remains open to the European Commission to adopt a delegated act pursuant to Article 33(3) DSA in order to prescribe methodology for the calculation of AMARs. We will continue to monitor any delegated acts or additional guidance on the calculation of AMARs, and provide updates as relevant. In the interim, organisations should continue to carefully document the precise methodology they use to calculate their AMARs in compliance with the DSA.
Contact us
For more information regarding AMAR calculations, or the Digital Services Act generally, please contact any member of our Technology and Innovation Group or your usual Matheson contact.
