EU Digital Services Act Applicability Test

Start with the specific service, not the corporate group. First decide whether it is an information society service: a service normally provided for remuneration, at a distance, by electronic means, and at the individual request of a recipient. Then test whether it performs a mere conduit, caching, or hosting function.

The DSA defines a recipient as a natural or legal person using an intermediary service, including to seek information or make information accessible. A provider offers services in the Union when people in one or more Member States can use the intermediary service and the provider has a substantial connection to the Union.

Record the evidence for that connection. Establishment in the Union is one route. Other evidence can include a significant number of recipients in one or more Member States or targeting activities toward one or more Member States. Mere technical accessibility of a website from the Union is not enough on its own.

The first classification branch is functional. A mere conduit service transmits user-provided information or provides access to a communication network. A caching service transmits user-provided information and stores it automatically, temporarily and intermediately to make onward transmission more efficient. A hosting service stores information provided by, and at the request of, a recipient.

Only after a hosting classification is plausible should the test ask whether the service is an online platform. Online platforms are hosting services that store and disseminate recipient-provided information to the public, unless public dissemination is only a minor, purely ancillary feature or a minor functionality of the main service that cannot be used independently for objective technical reasons.

A marketplace classification matters because some online platforms allow consumers to conclude distance contracts with traders. The DSA text and Commission materials connect that category to trader traceability and illegal-goods controls, so the applicability record should capture seller onboarding, product or service listings, checkout flows and consumer-facing seller information.

For any online platform, the applicability test should also note whether the service presents advertisements, uses recommender systems, is accessible to minors or moderates user-provided content. These facts do not replace the service classification, but they determine which platform obligations need follow-up.

The DSA contains an exclusion for providers of online platforms that qualify as micro or small enterprises under Recommendation 2003/361/EC. That exclusion applies to Section 3 platform obligations except Article 24(3), and it can continue for 12 months after losing micro or small status. It does not protect a service designated as a very large online platform.

The applicability test should therefore preserve the enterprise-size analysis separately from the service classification. A service can still be an online platform even if some platform-section obligations are excluded because the provider is micro or small.

Under Recommendation 2003/361/EC, a microenterprise has fewer than 10 staff and annual turnover or an annual balance-sheet total no higher than EUR 2 million. A small enterprise has fewer than 50 staff and annual turnover or an annual balance-sheet total no higher than EUR 10 million. The Recommendation's autonomous, partner, and linked-enterprise rules can require proportionate or full aggregation of other enterprises, so a provider should not apply the headcount and financial ceilings to one legal entity in isolation without checking ownership and control.

For online platforms and online search engines covered by Article 24(2), the DSA requires publication of average monthly active recipients of the service in the Union, calculated over the past six months, and updated at least every six months. Article 19 can exclude qualifying micro and small online-platform providers from that publication duty, although Article 24(3) remains available for authority requests. Recipient-count information can also support very large online platform and very large online search engine designation.

Article 33 applies to online platforms and online search engines with average monthly active recipients in the Union equal to or higher than 45 million, once designated by the Commission. The Commission page explains the same threshold as more than 45 million users per month in the EU and notes that designated services have four months to comply with the DSA's very large service rules.