Contents
Judgment of the General Court (Seventh Chamber, sitting with five Judges)14 October 2026note(Digital services — Regulation (EU) 2022/2065 — Designation as a very large online platform — Continued interest in bringing proceedings — No finding that there is no need to adjudicate — Plea of illegality — Article 33(1) and (4) of Regulation 2022/2065 — Legal certainty — Equal treatment — Obligation to state reasons — Principle of good administration — Right to be heard — Article 41(2) of the Charter of Fundamental Rights)In Case T‑134/24,Technius LTD, established in Limassol (Cyprus), represented by T. Bosch and T. Kraul, lawyers,vEuropean Commission, represented by L. Armati, acting as Agent,supported byFederal Republic of Germany, represented by J. Möller, acting as Agent,byEuropean Parliament, represented by M. Menegatti, W. Kuzmienko, E. Paladini, L. Taïeb and E. Ni Chaoimh, acting as Agents,byCouncil of the European Union, represented by E. Sitbon, N. Brzezinski, M. Moore and N. Coghlan, acting as Agents,and byStichting Article 19, established in Amsterdam (Netherlands), represented by M. Husovec, lawyer,THE GENERAL COURT (Seventh Chamber, sitting with five Judges),composed, at the time of the deliberations, of S. Papasavvas, President, K. Kowalik-Bańczyk, E. Buttigieg, G. Hesse and I. Dimitrakopoulos (Rapporteur), Judges,Registrar: S. Spyropoulos, Administrator,having regard to the written part of the procedure,further to the hearing on 13 November 2025,gives the following
Judgment
1By its action under Article 263 TFEU, the applicant, Technius LTD, seeks annulment of 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 (‘the contested decision’).
Background to the dispute
2The applicant is the provider of an online adult entertainment platform which allows models to live-stream pornographic webcam performances to the public (‘Stripchat’). The applicant merely makes that platform available without producing content for it.
3On 15 February 2023, the applicant published on its website, pursuant to Article 24(2) of 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), the average monthly number of active recipients in the European Union (‘the AMAR’) of Stripchat between September 2022 and February 2023 (‘the relevant period’), which amounted to 31.8 million.
4On 15 May 2023, the European Commission asked the applicant for information on the methodology that it had used to calculate the AMAR in order to verify the accuracy of the number reported.
5On 31 May 2023, the applicant provided the Commission with a summary of the methodology used, based on the data provided by the marketing analytics service Similarweb Ltd (‘Similarweb’). The applicant stated that it had first determined the number of ‘visitors’ on Stripchat in each month during the relevant period, before calculating the average over that six-month period, which was 67010749 visitors per month. Second, the applicant used ‘deduplication’ to exclude visitors that had accessed Stripchat in a given month from both desktop and mobile devices, which resulted in the exclusion of 4927505 visitors and a deduplicated count of 62083244 unique visitors per month on average. Third, the applicant ‘cleansed’ the data in order to exclude from the number of unique visitors resulting from deduplication those who were not ‘active’ in the sense that they had made only a ‘bounced visit’, that is to say, that they had logged in to Stripchat but had not been exposed to any content disseminated on that platform. Similarweb estimated the ‘bounce rate’, corresponding to the proportion of bounced visits, to be approximately 49%. The applicant inferred therefrom that the number of unique visitors should be reduced by 49%. It thus subtracted 30304161 from 62083244, resulting in an AMAR in the European Union of 31779083.
6On 6 July 2023, the Commission sent questions to Similarweb regarding the methodology it had used to estimate the number of unique visitors per month and the number of bounced visits.
7On 26 September 2023, following Similarweb’s replies of 25 and 26 July and 1 and 5 September 2023, the Commission communicated to the applicant its preliminary findings to the effect that Stripchat met the conditions for designation as a very large online platform under Article 33(1) and (4) of Regulation 2022/2065 (‘the preliminary findings’). More specifically, the Commission informed the applicant that it considered the Similarweb data to be sufficiently reliable for the purpose of calculating the AMAR of Stripchat, but that it took the provisional view that the applicant’s method of discounting bounced visits was inappropriate. On the basis of the data referred to above, the Commission calculated that the number of unique visitors following deduplication was 62221379 (‘the Commission data’). The Commission invited the applicant to submit its views on the preliminary findings within 10 working days, in accordance with the third subparagraph of Article 33(4) of Regulation 2022/2065.
8On 28 September 2023, the applicant acknowledged receipt of the preliminary findings. On 2 October 2023, the applicant requested the Commission to share the electronic communication exchanged with Similarweb and other documents referenced in the preliminary findings.
9On 4 October 2023, the Commission provided the applicant with digital copies of the requested documents. Those documents included, inter alia, first, Similarweb’s replies of 25 and 26 July and 1 and 5 September 2023, second, a note for the file containing background material to support the preliminary findings, describing the data and methodology used to estimate the Commission data and, third, certain technical log files. The Commission also gave the applicant the opportunity to benefit from five additional days to respond to the preliminary findings.
10On 14 October 2023, the applicant responded to the preliminary findings and reiterated its view that the data from Similarweb could not be used as an accurate metric for determining the AMAR of Stripchat without deducting bounced visits or any other appropriate data ‘cleansing’ processes.
11By the contested decision, the Commission found that the AMAR of Stripchat exceeded the threshold laid down in Article 33(1) of Regulation 2022/2065, and therefore Stripchat had to be designated as a very large online platform in accordance with Article 33(4) of that regulation.
Forms of order sought
12The applicant claims that the Court should:– annul the contested decision;– order the Commission to pay the costs.
13The Commission, supported by the Federal Republic of Germany, the European Parliament, the Council of the European Union and Stichting Article 19, contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
Law
The applicant’s continued interest in bringing proceedings
14It should be recalled as a preliminary point that, according to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure. Such an interest presupposes that annulment of that measure must be capable, in itself, of having legal consequences and may therefore, through its outcome, procure an advantage for the applicant. Furthermore, the interest in bringing proceedings must not only exist at the stage of lodging the action, but must also continue until the final decision (see, to that effect, judgment of 13 July 2023, D & A Pharma v EMA, C‑136/22 P, EU:C:2023:572, paragraphs 43 and 44 and the case-law cited).
15The Court of Justice has recognised that an applicant’s interest in bringing proceedings does not necessarily disappear by reason of the fact that the measure contested by him or her has ceased to have effect in the course of the proceedings. An applicant may retain an interest in obtaining a declaration that the measure in question is unlawful for the period during which it was applicable and had effect, and such a declaration continues to be at least of interest as a basis for a possible action for damages (judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 41).
16In the present case, it is apparent from the file that, on 27 May 2025, the Commission adopted Decision C(2025) 3521 final terminating the designation of Stripchat as a very large online platform and repealing the contested decision. It is apparent from Article 1 of that decision that it repeals the contested decision, pursuant to Article 33(6) of Regulation 2022/2065, under which the obligations laid down in Section 5 of Chapter III of that regulation cease to apply to the provider of the very large online platform from four months after the notification of the decision terminating the designation of that service as a very large online platform. Since the contested decision produced effects vis-à-vis the applicant, at least for the period from 22 April 2024 to 28 September 2025, the applicant is correct in claiming that it has a continued interest in the annulment of that decision, which is not disputed by the Commission.
Substance
17In support of its action, the applicant initially raised six pleas in law, alleging (i) infringement of Article 33(4) of Regulation 2022/2065 and of the principle of good administration; (ii) infringement of the second paragraph of Article 296 TFEU; (iii) 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; (iv) infringement of the principle of legal certainty; (v) infringement of Article 2 TFEU, of Article 20 of the Charter and of the principle of equal treatment, and (vi) infringement of Article 16 of the Charter and of the principle of proportionality, as protected by Article 52 of the Charter.
18On 19 November 2025, the applicant replied in writing to a question put by the Court at the hearing, stating that it was withdrawing its fifth and sixth pleas, in the light of the guidance drawn from the judgment of 3 September 2025, Zalando v Commission (T‑348/23, under appeal, EU:T:2025:821).
The second plea, alleging infringement of the second paragraph of Article 296 TFEU
19The applicant claims, in essence, that the contested decision infringes the obligation to state reasons in that it does not disclose in a clear, comprehensive and unequivocal fashion the facts on the basis of which it was adopted. In particular, the Commission refers only incidentally to the data which enabled it to conclude that Stripchat exceeded the average monthly threshold of 45 million active recipients in the European Union laid down in Article 33(1) of Regulation 2022/2065 without disclosing the source or methodology used to calculate the number of active recipients. Rather, the contested decision focuses on rejecting the AMAR provided by the applicant. In so far as the contested decision was based more on other available information sourced independently by the Commission, it was for the Commission, according to the applicant, to provide further explanations of the data and methodology used. The applicant adds that, even if Article 33(4) of Regulation 2022/2065 allows the Commission to use independent data, making use of that option entails a subsequent obligation to provide a clear and well-founded explanation, particularly when fundamental rights are at stake.
20The Commission disputes the applicant’s assertions.
21In that regard, it should be borne in mind that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. Thus, the requirement to state reasons depends on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, inasmuch as the question of whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63; of 22 June 2004, Portugal v Commission, C‑42/01, EU:C:2004:379, paragraph 66; and of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 79).
22In the present case, it is apparent from the contested decision that, first, the Commission recalled, in recitals 5 to 7, the methodology used by the applicant, which consists of three steps (see paragraph 5 above).
23Second, in recitals 9 to 11 of that decision, the Commission summarised its preliminary findings. In that context, in recital 10 of the contested decision, it explained its disagreement with the use of the ‘bounce rate’ metric in the applicant’s calculation, that is to say, with the third step of the methodology proposed by the applicant. In recital 11 of that decision, it made a reference to figures from the Similarweb data following deduplication, stating that those data were reliable, thereby accepting, in essence, the applicant’s calculations in relation to the first two steps of the methodology for determining the AMAR of the Stripchat website. It highlighted the number of 62221379 unique monthly visitors during the relevant period (following deduplication), a number which was only slightly different from that reached by the applicant at the end of the second step of its methodology (see, in that regard, paragraphs 39 to 42 below).
24Third, as is apparent from recitals 16 to 30 of that decision, the Commission explained in detail why it considered that the applicant’s views on its preliminary findings did not call those findings into question.
25Fourth, in recital 17 of the contested decision, the Commission found, as regards the applicant’s methodology referred to in paragraph 5 above, in essence, that, by deducting the number of visitors who made a bounced visit, calculated by applying the bounce rate as referred to in paragraph 5 above, in fine, solely from the number of unique visitors following deduplication as reported by Similarweb, the applicant had artificially reduced the actual number of active recipients of Stripchat in the European Union. As explained by the Commission, in recital 18 of the contested decision, Similarweb’s ‘unique visitors’ metric included only visitors with a minimum number of active daily visits during the month concerned, so as to avoid including inactive users in the total number of monthly unique visitors. Active visits included actions by visitors such as clicking a link or filling out a form. The Commission considered that Similarweb’s methodology for calculating the number of unique visitors therefore significantly reduced the possibility that a visitor with only incidental access to a site, such as a bounced visit, would be counted as a unique visitor. That is why the Commission stated that it had not reduced the number of unique visitors following deduplication on the basis of the number of visitors who had made a bounced visit, as the applicant had calculated by applying the bounce rate. On the contrary, the Commission stated, in recital 19 of the contested decision, that the average monthly number of unique visitors determined by Similarweb following deduplication was a more reliable metric for determining the AMAR. In that context, as is apparent from recitals 20 to 30 of the contested decision, the Commission also rejected, on the one hand, the applicant’s argument that the bounce rate based on the number of unique visitors would be expected to be higher than or equal to the bounce rate based on the number of total visits and, on the other, its claims based on a new source of data relied on to support the average number of logins per unique visitor to Stripchat in the European Union. As is apparent from recitals 28 and 29 of the contested decision and footnotes 16 to 22 thereto, the Commission also referred to electronic communications with Similarweb, which, inter alia, provided a better understanding of the method for calculating the bounce rate and of the concept of ‘unique visitors’, as used by Similarweb.
26Fifth, in recital 31 of the contested decision, in the light of the foregoing considerations, the Commission found that the methodology applied by the applicant to calculate the AMAR was intrinsically flawed, that Similarweb’s ‘unique visitors’ metric already excluded a large proportion of bounced visits and that the applicant had not provided any other data of its own or from third parties that would indicate a reliable number of users who had not made a bounced visit. The Commission thus stated that it took the view that the number of unique monthly visitors determined by Similarweb for Stripchat following deduplication, namely 62621379 unique monthly visitors during the period from September 2022 to February 2023, was the most reliable metric available to it to determine the AMAR.
27In the light of the foregoing, the contested decision indicates, clearly and with sufficient precision, the shortcomings in the applicant’s methodology and the material on which the Commission based its finding with regard to the AMAR of Stripchat.
28It follows that the statement of reasons for the contested decision is adequate and meets the requirements laid down in the case-law referred to in paragraph 21 above.
29Accordingly, the second plea must be rejected as unfounded.
The first plea, alleging infringement of Article 33(4) of Regulation 2022/2065 and of the principle of good administration
30The applicant claims, in essence, that the Commission did not rely on sufficiently reliable data and that those data proved to be inconsistent and factually inaccurate. It states that, after the contested decision was adopted, Similarweb corrected its methodology for estimating the number of unique visitors. It adds that the Commission should have ‘cleansed’ those data in order to correct the inaccuracies they contain. It also maintains that those data do not match the data from other available sources. It concludes that, by incorrectly finding that the AMAR of Stripchat in the European Union exceeded 45 million, the Commission failed to fulfil its obligation to examine carefully and impartially all the relevant facts of the present case and infringed Article 33(4) of Regulation 2022/2065.
31The Commission disputes the applicant’s assertions.
–Preliminary observations
32Under Article 33(1) and (4) of Regulation 2022/2065, the Commission is to designate as very large online platforms those online platforms which have an AMAR equal to or higher than 45 million. It is to take its decision on the basis of data reported by the provider of the online platform pursuant to Article 24(2) of that regulation, or information requested pursuant to Article 24(3) thereof or any other information available to it.
33Under Article 3(p) of Regulation 2022/2065, an active recipient of an online platform is a recipient of the service that has engaged with an online platform by either requesting the online platform to host information or being exposed to information hosted by the online platform and disseminated through its online interface.
34Article 24(2) of Regulation 2022/2065 provides that, by 17 February 2023 and at least once every six months thereafter, providers are to publish for each online platform, in a publicly available section of their online interface, information on the average monthly active recipients of the service in the European Union, calculated as an average over the period of the past six months and in accordance with the methodology laid down in the delegated acts referred to in Article 33(3) of that regulation, where those delegated acts have been adopted.
35In addition, Article 24(3) of Regulation 2022/2065 provides that providers of online platforms or of online search engines are to communicate to the Digital Services Coordinator of establishment and the Commission, upon their request and without undue delay, the information referred to in paragraph 2 of that article, updated to the moment of such request. That Digital Services Coordinator or the Commission may require the provider of the online platform or of the online search engine to provide additional information as regards the calculation referred to in that paragraph, including explanations and substantiation in respect of the data used.
–The inconsistency and inaccuracy of the data used by the Commission
36The applicant claims that the data on which the Commission relied are inconsistent and factually inaccurate. It states that, in those data, the AMAR for some Member States, such as Ireland, is too high to be plausible, whereas the AMAR for others, such as Denmark, is too low.
37In the present case, pursuant to Article 33(4) of Regulation 2022/2065, the Commission relied on the data provided by Similarweb in order to determine the AMAR of Stripchat in the European Union.
38First, it must be stated that the Similarweb data the reliability of which the applicant calls into question are precisely the data on which the applicant relied to determine the AMAR of Stripchat in the European Union between September 2022 and February 2023 and to publish it on its website. Second, it should be noted that, when it responded to the preliminary findings, the applicant did not call into question the reliability of those data, and therefore, failing any express challenge, the Commission was entitled to rely on those data without stating the reasons why it considered them to be reliable.
39As regards the differences between the applicant’s data and those used by the Commission (see paragraphs 5 and 7 above, regarding the number of unique visitors following deduplication), the Commission states that it took into account the Similarweb data for Denmark, whereas the applicant had not done so. According to the Commission, those data were excluded on the ground that, when the data was retrieved, Similarweb had not provided data relating to deduplicated audience figures for Denmark, since its data for that Member State included only unique monthly visitors who accessed Stripchat via desktop computers.
40On that point, it should be noted that the difference between the AMAR calculated by the applicant and that calculated by the Commission indeed corresponds to the number of unique visitors to the Stripchat service as indicated by the Commission for Denmark (rounded to 138135 unique visitors for the relevant period), a fact which is not disputed by the applicant as such. However, it must be stated that that difference is minimal and has no bearing on whether the Stripchat platform exceeded the threshold laid down in Article 33(1) of Regulation 2022/2065, which the applicant has, moreover, not claimed. Accordingly, the applicant’s argument relating to that difference is ineffective.
41Moreover, the applicant has not explained why it did not include the data concerning Denmark in its initial calculation, based on the Similarweb data, even though those data were available and should have been taken into account in accordance with the methodology that it had itself followed.
42It follows that the Commission’s inclusion of the data relating to the number of users of the Stripchat service in Denmark in the calculation of the AMAR taken into account in the contested decision is not such as to call into question the legality of that decision.
–The failure to take into account the Similarweb data post-dating the contested decision
43In the reply, the applicant submits that, after the contested decision was adopted, Similarweb corrected its methodology for estimating the number of unique visitors, updating its algorithms and incorporating ‘the latest advancements in [its] web methodologies’. The applicant claims that, by applying those corrected data, which it obtained from Similarweb on 8 August 2024, the AMAR of Stripchat for the relevant period would be 37270950 (‘the corrected data’), that is to say, a figure ‘well below the threshold’ to be designated as a very large online platform. The applicant also argues, on the basis of detailed tables, that the new figures per Member State are lower than the initial figures.
44According to the last sentence of the first subparagraph of Article 33(4) of Regulation 2022/2065, ‘the Commission shall take [the decision designating as a very large online platform or a very large online search engine for the purposes of that regulation] on the basis of the data reported by the provider of the online platform or of the online search engine pursuant to Article 24(2), or information requested pursuant to Article 24(3) or any other information available to [it]’. Neither the corrected data nor Similarweb’s new methodology fell within one of those categories on the date on which the contested decision was adopted. In addition, taking such data into account retroactively when examining the legality of a decision designating an online platform as a very large online platform, within the meaning of Article 33(1) of that regulation, would be liable to create a situation of legal uncertainty as to the classification of a platform of that kind, in so far as those data are clearly subject to ongoing developments and to the volatility of the algorithms from which they are produced.
45Furthermore, as is clear from settled case-law, the legality of an EU measure must, in principle, be assessed on the basis of the facts and the law as they stood at the time when that measure was adopted (see, to that effect, judgments of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 63 and the case-law cited, and of 17 October 2019, Alcogroup and Alcodis v Commission, C‑403/18 P, EU:C:2019:870, paragraph 45 and the case-law cited). It follows that, in principle, matters post-dating the adoption of that measure cannot be taken into account when assessing its legality.
46As stated, the corrected data relied on by the applicant in its reply constitute matters post-dating the contested decision, so that the line of argument which it developed on the basis of those data is irrelevant for the purpose of assessing the legality of the contested decision.
47In those circumstances, it must be concluded that the contested decision is not vitiated by illegality on the ground that the Commission did not take the corrected data into account.
–The relevance of the data taken into account by the Commission
48The applicant submits that the data on which the Commission’s calculations were based were merely estimates and that the Commission did not ‘cleanse’ the data (i) with regard to the use of ‘pop-unders’, namely advertisements appearing in a browser window hidden under the window actually viewed; (ii) with regard to users who had used virtual private networks (‘VPNs’); and (iii) with regard to bounced visits. It adds that the Commission data does not match with data from other available sources.
49It should be noted at the outset, with regard to the factors which, according to the applicant, the Commission ought to have taken into account, such as the use of ‘pop-unders’ or ‘VPNs’, that although the applicant claims that users of VPNs are not necessarily located in the European Union and that persons who have received ‘pop-unders’ were not necessarily exposed to their content, it did not draw the appropriate conclusions from its own claims by adjusting its initial figures when it calculated the AMAR of Stripchat, so as to comply with Article 24(2) of Regulation 2022/2065. Moreover, it is also common ground that the issue of the use of ‘pop-unders’ or ‘VPNs’ had not been raised by the applicant when it responded to the preliminary findings. In those circumstances, the applicant is not justified in claiming that, by not taking the use of ‘pop-unders’ or VPNs into consideration, the Commission failed to fulfil its duty of diligence.
50As regards the data on which the Commission based its assessment of the AMAR, the applicant is not justified in claiming that the Commission relied only on arbitrary estimates. As recalled in paragraph 38 above, the Commission, like the applicant, based its calculation on the Similarweb data.
51With regard to whether the Commission was under an obligation to ‘cleanse’ the data by taking a bounce rate into account, it should be recalled that the bounce rate represents the percentage of bounced visits, which are visits during which a visitor enters a website and then leaves it after viewing only one page, without any further interaction. Moreover, it is common ground that Similarweb calculates the bounce rate by dividing the single-page visits by the total visits to a site during a set period. The bounce rate is indicated as a percentage of the total visits during the specified period.
52The applicant’s methodology for determining the AMAR of Stripchat has been summarised in paragraph 5 above.
53In the contested decision, the Commission found, in essence, that, by deducting the number of visitors who made a bounced visit, calculated by applying the bounce rate, solely from the number of unique visitors following deduplication as reported by Similarweb, the applicant had artificially reduced the actual number of active recipients of Stripchat in the European Union (see paragraph 25 above). Thus, the Commission considered that the average monthly number of unique visitors determined by Similarweb following deduplication was a more reliable metric for determining the AMAR.
54It should be noted, as the Commission correctly pointed out in recital 18 of the contested decision, that the number of unique visitors estimated by Similarweb included only visitors with a minimum number of visits during the month concerned, so as to avoid including inactive users in the total number of monthly unique visitors. In that regard, the Commission referred, in footnote 16 to the contested decision, to Similarweb’s electronic communication of 5 September 2023, according to which the unique visitors to Stripchat corresponded to those who had visited that platform on ‘[a] few days at the end of the previous month (6 days)[, the] first day of the specific month … [and a] few days at the end of the specific month (3 days)’.
55In analysing the Similarweb data, the Commission examined what the terms ‘visits’ and ‘visitors’ correspond to in connection with the formula used to calculate the bounce rate. It also asked Similarweb to clarify whether bounced visits were already excluded from the number of unique visitors provided to customers.
56It is apparent from Similarweb’s email of 26 July 2023 that the latter replied, as regards the first question referred to in paragraph 55 above, that the terms ‘visits’ and ‘unique visitors’ were not interchangeable. It confirmed that the bounce rate was calculated on the basis of the visits.
57Similarweb also stated, referring to monthly active visitors (unique visitors), that the model provided for some degree of correction of the calculation, taking into account data from the beginning and end of the period under consideration. According to Similarweb, that filtering process eliminates the vast majority of bounced visits, particularly where visitors may have logged in to Stripchat inadvertently. In that regard, the specified datum concerning unique visitors, as set out in paragraph 54 above, was provided to the Commission.
58In those circumstances, the applicant is not justified in criticising the Commission for rejecting its methodology, consisting of applying the bounce rate as defined by Similarweb to the number of unique visitors, following deduplication, on the ground that the applicant had artificially reduced the actual number of active recipients of Stripchat in the European Union. As has already been stated, that bounce rate was calculated by dividing the number of bounced visits by the total number of visits, during a predetermined period, even though the ‘unique visitor’ datum, as defined by Similarweb, already inherently involves a filtering process that eliminates a significant number of bounced visits (see paragraph 57 above).
59Therefore, as the Commission states in recitals 17 and 18 of the contested decision, the applicant’s approach to determining the AMAR for Stripchat was unjustified. Given that the methodology for calculating the number of unique monthly visitors used by Similarweb already considerably reduced the possibility that a visitor with only incidental access to a website, such as a bounced visit, would be counted as a unique visitor, the applicant’s approach consisted of a change in Similarweb’s methodology that was not compatible with the essential characteristics of that methodology and was not capable of producing a reliable result. In the light of the foregoing, it also cannot validly be claimed that the Commission failed to exercise due diligence in seeking the necessary technical clarifications from Similarweb to understand the relevant aspects of the methodology used by the applicant in the present case, given that the Commission contacted Similarweb on several occasions and Similarweb replied, inter alia, by emails of 25 and 26 July and 1 and 5 September 2023. It is sufficiently clear from those electronic communications that the Commission deepened its understanding of the technical aspects underpinning the methodology applied by the applicant (see, also, paragraphs 54 to 58 above).
60Accordingly, first, the Commission was correct to conclude that the applicant’s methodology cannot be regarded as sufficiently reliable. Second, it should be noted that the applicant is not justified in criticising the Commission for not reducing the number of unique visitors by 49% in order to determine the AMAR of Stripchat.
61In addition, as regards the applicant’s claims that the Commission should, in any event, have reduced its estimate of the number of unique visitors to the Stripchat website to take into consideration a bounce rate that it was for the Commission to determine, it is apparent from the documents in the file, and in particular from Similarweb’s electronic communication with the applicant dated 5 October 2023, that Similarweb confirmed that, to its knowledge, there was no technical means of stating the bounce rate in relation to unique visitors with sufficient precision. In such a situation, in the light of Article 33(4) of Regulation 2022/2065, the Commission was also not required to carry out additional analyses or assessments in that regard, which, moreover, had not been carried out or proposed by the applicant during the administrative procedure.
62In those circumstances, without more precise data from the applicant in that regard, it was not for the Commission itself to carry out, for the first time, a hypothetical calculation – different from that proposed by the applicant – with the aim of taking into account a bounce rate yet to be determined, in order to reduce the number of unique visitors to the Stripchat website (following deduplication), even though the way in which those visitors were defined by Similarweb clearly shows that a significant proportion of bounced visits is already excluded from that number.
63Accordingly, the applicant is not justified in criticising the Commission for not reducing the number of unique visitors to the Stripchat website (following deduplication).
–Compliance with the obligation to examine carefully and impartially
64As regards the other claims made by the applicant for the first time before the Court – which are somewhat disparate – seeking to demonstrate that the Commission failed to fulfil its obligation to examine carefully and impartially all the relevant facts of the case by not verifying its data against data from other readily available sources, which, according to the applicant, do not confirm those data, it should be noted that the applicant refers to data from Google Trends (a publicly available tool that shows the popularity of search queries in Google Search by country over time) which reveal that the search volume for Stripchat is significantly lower than for the website P., an adult content platform that was also designated as a very large online platform by the Commission. The applicant supports that assessment with a recent study on internet use in the United Kingdom (Office of Communications (OFCOM, United Kingdom), ‘Online Nation 2023 Report’, p. 50 (figure 36)). Last, the applicant also relies on data from an undertaking competing with Similarweb, namely the market analytics undertaking SE.
65In that regard, it must be held, first, that the various sources referred to above, which are generally accessible, to which the applicant refers in order to claim that the Similarweb data were inaccurate, were not relied on during the administrative procedure, and therefore the Commission was not required to examine them and the applicant cannot validly claim that the Commission failed to exercise due diligence in that regard. Second, in any event, they do not constitute relevant data in so far as they do not make it possible to assess the reliability of the method used by Similarweb, proposed by the applicant and adopted by the Commission.
66It must be stated that the number of searches on Google Search relating to the Stripchat website and the analyses carried out in that regard on Google Trends do not make it possible to assess the AMAR of that site, given the other means of access that exist, in particular via the URL of the page to be visited. Similarly, a comparison with competing websites, such as P., irrespective of the undertaking making that comparison, does not in any way make it possible to calculate the AMAR of the Stripchat website. As regards the information drawn from studies by other undertakings such as SE, which were not submitted to the Commission during the administrative procedure, the applicant has not established that the Commission should have taken it into account, whereas, moreover, those studies were based on information and data different from those used by the applicant.
67Accordingly, the present complaint must be rejected.
68In the light of all the foregoing, the applicant’s first plea must be rejected as, in part, ineffective and, in part, unfounded.
The third plea, alleging infringement of Article 41(2)(a) of the Charter and of the right to be heard
69The applicant submits that Article 33(4) of Regulation 2022/2065 and the contested decision which implements that article infringe its right to be heard. It submits that the period of 10 working days laid down by that provision and applied in the present case is, in itself, unreasonably short and de facto renders the right to be heard meaningless.
70The Commission, supported by the Federal Republic of Germany, the Parliament, the Council and Stichting Article 19, disputes the applicant’s arguments.
71As a preliminary point, it should be noted that the applicant’s claims, submitted in support of its third plea, can be divided into two separate parts. First, as the Commission submits, in so far as the applicant claims that Article 33(4) of Regulation 2022/2065, on which the contested decision is based, ‘infringes [its] right to be heard’, it must be regarded as raising a plea of illegality under Article 277 TFEU. Second, the applicant claims that, by applying Article 33(4) of Regulation 2022/2065 to the circumstances of the present case in the contested decision, the Commission infringed Article 41(2)(a) of the Charter and its right to be heard.
72In that regard, it should be borne in mind that the right to be heard, as protected by Article 41(2)(a) of the Charter, guarantees every person the possibility of making known, in a useful and effective manner, his or her point of view during the administrative procedure and before the adoption of any decision which may adversely affect his or her interests (see judgment of 2 February 2022, LU v EIB, T‑536/20, not published, EU:T:2022:40, paragraph 55 and the case-law cited).
73As is clear from the case-law, the question whether there is an infringement of the right to be heard must be examined in relation, inter alia, to the legal rules governing the matter concerned (judgment of 9 February 2017, M, C‑560/14, EU:C:2017:101, paragraph 33).
74As regards, in the first place, the plea of illegality raised by the applicant, it should be noted that, under the third subparagraph of Article 33(4) of Regulation 2022/2065, ‘where the Commission bases its decision on other information available to the Commission pursuant to the first subparagraph of [that] paragraph or on the basis of additional information requested pursuant to Article 24(3), the Commission shall give the provider of the online platform or of the online search engine concerned 10 working days in which to submit its views on the Commission’s preliminary findings and on its intention to designate the online platform or the online search engine as a very large online platform or as a very large online search engine, respectively’.
75It must be stated that, in general, a period of 10 days cannot be regarded as insufficient for the provider of the platform concerned to submit its views on the preliminary findings in a useful and effective way, in the light of the fact that that provider should already have collected the necessary information and calculated the AMAR of its platform pursuant to Article 24(2) of Regulation 2022/2065. In those circumstances, the period of 10 days established by the third subparagraph of Article 33(4) of Regulation 2022/2065 does not infringe the right of the person concerned to be heard. Accordingly, the plea of illegality raised by the applicant must be rejected.
76As regards, in the second place, the applicant’s complaints that the Commission infringed Article 41(2)(a) of the Charter and its right to be heard as a result of the application of the period established by the third subparagraph of Article 33(4) of Regulation 2022/2065, it should be noted that, even on the assumption that that period of 10 days might prove insufficient in certain specific circumstances, in particular in the light of the nature and content of the information relied on by the Commission in support of its preliminary findings, it must be held that, in the present case, the existence of such circumstances has not been established.
77In that regard, it should be noted that, contrary to what the applicant claims, the Commission did not adopt a new method that the applicant would have had to understand and evaluate in detail, or base its assessment on its own data, which would thus be regarded as new data. Rather, it refused to accept the last step of the methodology applied by the applicant itself. By contrast, as regards the first two steps of that methodology, the Commission based its findings on, in essence, the same data from Similarweb as those used by the applicant for the purposes of its own calculation.
78Admittedly, the applicant submits that such a period could prove to be too short should it be necessary to communicate with a third-party undertaking, such as Similarweb, regarding specific matters such as the definitions of the terms used in connection with the methodology applied. However, on that point, first, the applicant had already had the opportunity, in connection with the publication of the information relating to the AMAR in accordance with Article 24(2) of Regulation 2022/2065, not only to collect and assess data on that subject, but also to understand the data obtained from Similarweb and to make sure that those data and the methodology used were relevant. Thus, once the Commission had sent it its preliminary findings, the applicant would have been able to respond in a useful and effective way within the prescribed period.
79Second, it must be stated that, as the Commission maintains, the applicant was granted a period of 10 working days from receipt of the file (namely the documents supporting the preliminary findings) to submit its views, that is to say, an overall period of 15 working days to respond to those findings, after acknowledging receipt of them (the applicant having acknowledged receipt of the preliminary findings on 28 September 2023 and having been granted access to the file on 4 October 2023). The applicant responded within the prescribed period. Moreover, in that response, the applicant did not raise any objections or express any reservations regarding its right to be heard or the insufficiency of the period granted to it. Therefore, the applicant has not established that the period available to it was insufficient.
80Accordingly, the present plea must be rejected in its entirety as unfounded.
The fourth plea, alleging infringement of the principle of legal certainty
81The applicant submits, in essence, that Article 33(1) and (4) of Regulation 2022/2065 does not constitute a valid legal basis for the contested decision because, without a delegated act laying down a methodology for calculating the AMAR, that concept of ‘average monthly number of active recipients of an online platform’ is not sufficiently precise and designation as a very large online platform is therefore not sufficiently foreseeable. The applicant submits, in that regard, that the principle of legal certainty must allow affected economic operators, such as itself, to identify their legal rights and obligations and to plan and budget their services accordingly. According to the applicant, it is also not clear how to determine whether a recipient is ‘unique’. While the concept of a ‘unique visitor’ is commonly used in marketing, there is no technical standard to determine unique visitors, in particular if a person accesses a service both via a mobile phone and a desktop computer in a given month and should only be counted once. Furthermore, the regulation at issue does not establish how precise the data must be. Last, the use of the term ‘monthly average’ is imprecise.
82The Commission, supported by the Federal Republic of Germany, the Parliament, the Council and Stichting Article 19, disputes the applicant’s arguments.
83The Court considers it appropriate to rule on the substance of the plea of illegality raised by the applicant in respect of Article 33(1) and (4) of Regulation 2022/2065, without it being necessary to rule on its admissibility.
84In that regard, it should be borne in mind that the principle of legal certainty requires, inter alia, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly (judgments of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 68, and of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraph 46). That principle must be observed all the more strictly in the case of rules liable to have financial consequences (see judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 52 and the case-law cited).
85However, the principle of legal certainty does not require that every rule should remove all doubt as to its interpretation. What matters is rather whether the legal measure in question displays such ambiguity as to make it difficult to resolve with sufficient certainty any doubts as to the scope or meaning of the provision (see also, to that effect, judgment of 14 April 2005, Belgium v Commission, C‑110/03, EU:C:2005:223, paragraph 31; Opinion of Advocate General Kokott in FCD and FMB, C‑106/14, EU:C:2015:93, point 55). Thus, the principle of legal certainty cannot be undermined solely on the ground that the EU judicature must have recourse to methods of interpretation other than the literal interpretation of a provision of general application (see, to that effect, judgment of 2 September 2021, Irish Ferries, C‑570/19, EU:C:2021:664, paragraph 167).
86Furthermore, the fact that a provision does not prescribe any specific method or procedure for its application does not mean, however, that it infringes the principle of legal certainty (see judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C‑160/20, EU:C:2022:101, paragraph 43 and the case-law cited). In such circumstances, it is for the authority or operators concerned to choose a reliable method capable of ensuring compliance with the requirement arising from that provision (see, to that effect, judgment of 30 January 2019, Planta Tabak, C‑220/17, EU:C:2019:76, paragraph 33).
87In the present case, it should be recalled, first of all, that the concept of ‘active recipient of an online platform’ is defined in Article 3(p) of Regulation 2022/2065, which provides that it means a ‘recipient of service that has engaged with an online platform by either requesting that the online platform host information or by being exposed to information hosted by the online platform and disseminated through the platform’s online interface’. Furthermore, it should be noted that that concept is intended to apply to a wide variety of situations. It follows from Article 3(i) and recital 13 of Regulation 2022/2065 that the concept of ‘online platform’ includes both social networks and marketplaces. The concept of ‘active recipient of an online platform’ must be capable of being adapted to different types of online platforms capable of displaying different types of content, including audio and visual content, in different ways, for example, by using a website or an application, or by making access to that content conditional, or not, on prior registration and the opening of an account (see, to that effect, judgment of 3 September 2025, Zalando v Commission, T‑348/23, under appeal, EU:T:2025:821, paragraph 79) or, for sites containing adult content, on the obligation to indicate, declare or even prove the legal age of users.
88Next, it should be borne in mind that, according to the case-law, the preamble to an EU act is capable of specifying the content of the provisions of that act and provides elements of interpretation which are capable of clarifying the intention of the author of that act, although it has no binding legal force and cannot be relied on to derogate from the actual provisions of the act concerned or to interpret those provisions in a manner contrary to their wording (see, to that effect, judgment of 21 March 2024, LEA, C‑10/22, EU:C:2024:254, paragraph 51 and the case-law cited).
89In the present case, recital 77 of Regulation 2022/2065 states that the calculation of the AMAR, and therefore of the number of persons exposed to the information hosted by an online platform, may depend on ‘the nature of the service and the way recipients of the service interact with it’ (see, to that effect, judgment of 3 September 2025, Zalando v Commission, T‑348/23, under appeal, EU:T:2025:821, paragraph 100).
90Last, recital 77 of Regulation 2022/2065 also states that a recipient may be exposed to information simply by ‘viewing it or listening to it’ and that ‘engagement is not limited to interacting with information by clicking on, commenting, linking, sharing, purchasing or carrying out transactions on an online platform’. It adds that the ‘concept of active recipient of the service does not necessarily coincide with that of a registered user of a service’. Furthermore, it specifies that the number of active recipients of a service should include all unique recipients that engage with it, so that a recipient of the service that uses different online interfaces should, where possible, be counted only once. That recital also states that Regulation 2022/2065 ‘does not require providers of online platforms or of online search engines to perform specific tracking of individuals online’.
91In the light of the foregoing, contrary to what the applicant claims, the concept of ‘active recipient of an online platform’ must be regarded as sufficiently precise, particularly in the light of the explanations set out in recital 77 of Regulation 2022/2065, and, therefore, foreseeable in terms of the application of that concept in the circumstances of the present case.
92With regard to the other concepts which the applicant considers to be imprecise, it should be noted that the explanations contained in Regulation 2022/2065 and set out above concerning the concept of ‘active recipient’ provide sufficient guidance to enable providers to calculate the AMAR of an online platform.
93A combined reading of Article 3(b) of Regulation 2022/2065 and recital 77 of that regulation – which, moreover, expressly provides for the possibility of deduplication with regard to recipients of the service using different online interfaces – provides sufficient clarity to ensure that the legislation at issue observes the principle of legal certainty in that regard, while leaving it to the undertakings concerned to use sufficiently reliable technical and methodological means to exclude, where appropriate, data that could lead to the same users being counted twice or even multiple times because they accessed the services via different devices such as a desktop computer or a mobile phone, or, in cases other than the present one, via a mobile application.
94Indeed, platforms have some degree of discretion in choosing a reliable method, it being understood that they are best placed to collect and analyse the relevant data for calculating the AMAR.
95In that regard, the existence of different methods for calculating the AMAR of platforms is not, as such, capable of establishing that Article 33(1) and (4) of Regulation 2022/2065, read in conjunction with Article 24(2) of that regulation, infringes of the principle of legal certainty.
96Furthermore, in so far as certain aspects of the operation of the platforms at issue are technically very difficult to quantify, the legislature cannot be criticised for not specifying such technical and methodological means.
97It should also be borne in mind that, according to the case-law, it is not necessary for a legislative act itself to provide details of a technical nature (judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 160). Moreover, contrary to the applicant’s submission, the fact that Regulation 2022/2065 provides for the possibility for the Commission to adopt a delegated act cannot suffice to establish that, in the absence of such a delegated act, the ambiguity of that regulation would be such that its application would infringe the principle of legal certainty (judgment of 3 September 2025, Zalando v Commission, T‑348/23, under appeal, EU:T:2025:821, paragraph 114).
98Last, in that context, the applicant’s other claims must be rejected as unfounded.
99First, as regards the criticisms concerning the alleged contradictory obligations to which a service provider is subject, namely to calculate its AMAR while refraining from any comprehensive tracking of its users, it is sufficient to note that it has not been shown that the alleged prohibition on tracking would have made it impossible to make a sufficiently reliable estimate of the AMAR.
100Second, as regards the applicant’s criticisms relating to the lack of clarity in Regulation 2022/2065 concerning the ‘period’ over which the AMAR must be calculated, Article 24(2) of that regulation clearly requires providers to publish ‘information on the average monthly active recipients of the service in the [European] Union, calculated as an average over the period of the past six months’, and that provision must be read in conjunction with Article 33(1) of that regulation. Moreover, in the present case, the applicant does not appear to have erred in defining the relevant period and the Commission has not raised any complaints in that regard.
101In those circumstances, it must be held that the applicant has not provided any material to support the conclusion that the details set out in Regulation 2022/2065 were insufficient to enable it to determine its AMAR, taking into account all the relevant circumstances and the specific features of the platform at issue.
102It follows that the applicant is not justified in claiming that Article 33(1) and (4) of Regulation 2022/2065 infringes the principle of legal certainty.
103Consequently, the applicant’s fourth plea must also be rejected as unfounded.
104It follows from all of the foregoing that all of the pleas relied on by the applicant have been rejected. Accordingly, the action must be dismissed in its entirety.
Costs
105Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the Commission’s costs in accordance with the form of order sought by the Commission.
106In addition, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Federal Republic of Germany, the Parliament and the Council must therefore bear their own costs.
107Last, under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) of those rules to bear its own costs. Pursuant to that article, Stichting Article 19 is to bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (Seventh Chamber, sitting with five Judges)hereby:
1.Dismisses the action;
2.Orders Technius LTD to bear its own costs and to pay those incurred by the European Commission;
3.Declares that the Federal Republic of Germany, the European Parliament, the Council of the European Union and Stichting Article 19 are to bear their own costs.
Delivered in open court in Luxembourg on 14 October 2026.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.