The Temu case shows that the DSA is not merely a regulation on digital services: when consumer protection becomes a tool for controlling infrastructure by Andrea Monti – Initially published in Italian by Italian Tech – La Repubblica
The €200 million fine imposed on 28 May 2026 by the European Commission on Temu – one of China’s e-commerce giants – marks a further step towards the abandonment, or at least the significant curtailment, of the principle of platform liability and establishes the Digital Services Act (DSA) as a powerful tool of geopolitical control in the hands of the European Commission.
A decision still lacking a public statement of reasons
The decision imposing the fine is not available, so the European Commission’s press release is the only source for gaining an understanding of the grounds on which the decision was based. This means that public debate is necessarily limited, whereas a comprehensive assessment would require knowledge of the actual reasoning, the evidence presented, the facts analysed and the reasoning followed by the adjudicator – as is the case with criminal judgments.
That said, based on the sole and limited source available, it would appear that the alleged infringements by the platform consisted of providing users with generic information on the risks of e-commerce rather than focusing on those associated with the use of Temu, in having underestimated the safety of products sold by vendors, and in failing to adequately assess the effect of automated recommendation systems and promotional programmes on the dissemination of dangerous products.
The four areas of the European investigation
Specifically, again according to the only available source, the European Commission’s investigation focused on four points:
· the measures taken by Temu to limit the reappearance of previously suspended dishonest sellers and the resale of previously removed goods;
· the risks of addiction linked to the gamification of the service and the measures taken to prevent negative consequences on people’s physical and mental well-being;
· the manner in which Temu has complied with the obligations of the Digital Services Act regarding the criteria for recommending content and products to users;
· the manner in which Temu complies with the obligation to provide researchers with access to publicly available data.
The end of marketplace neutrality
The first consideration that springs to mind for those who have been dealing for some time with issues relating to the liability of providers and e-commerce service providers is that if Temu is a marketplace – that is, if it merely provides the logistical infrastructure to enable sellers to market their products – then, under the venerable Directive 31/00, it cannot be held liable for what happens between the customer and the retailer.
In reality, this is not the case because even before the DSA, the provider could only absolve itself of responsibility for the management of the service if it did not intervene in the interaction with the user.
In the case of Temu, but also of platforms in general, this neutrality no longer exists because, whilst it is true that the provider does not directly sell products and services, it is also true that it can no longer be considered a neutral intermediary if, in addition to providing sales and payment tools (which are neutral), it selects and curates products of interest to the user and adopts customer loyalty strategies. If, therefore, Temu is liable for anything, it is so primarily for contractual reasons but also, in the abstract, for criminal reasons regarding aiding and abetting counterfeiting and the distribution of products hazardous to health.
Not new liability, but centralised oversight
Therefore, there was no need for an EU regulation to manage issues relating to e-commerce platforms at national level, and it is incorrect to claim that the DSA creates ‘new’ forms of liability for platforms. Rather, the regulation supplements potential civil actions by private individuals and criminal investigations initiated by public prosecutors with centralised preventive oversight in Brussels. And this is where issues emerge that are worth exploring in greater depth.
The DSA as indirect industrial policy
The EU is not a state but a body built on treaties; it cannot protect rights by superseding national constitutions nor, as provided for in Article 173 of the TFEU (Treaty on the Functioning of the EU), intervene autonomously in matters of competitiveness. Although the DSA is formally based on Article 114 TFEU and thus on internal market rules, its practical effect goes beyond the technical harmonisation of digital services. The regulation, in fact, allows the Commission to directly influence the way in which large digital platforms operate, thereby having an impact, above all, on the industrial policy of individual states.
An investigation with no end date
Another source of concern is the investigation procedure provided for by the DSA.
In a democratic state, the separation of powers non-negotiably requires that rights be protected exclusively by the judiciary in accordance with substantive rules (a precise list of violations) and procedural rules (the effective possibility of defending oneself, the presumption of innocence), compliance with which is a prerequisite for the imposition of sanctions.
The press release expressly states that the evidence against Temu was gathered through independent organisations commissioned by the Commission to carry out test purchases, information received from unidentified ‘third parties’, and data from customs and market surveillance authorities. Furthermore, as stated in one of the Commission’s official press releases regarding the Temu case: “The DSA does not set any legal deadline for bringing formal proceedings to an end” — the DSA does not set any deadline for the conclusion of the proceedings. This means that Temu, like anyone else, could be subject to investigation for a very long time — even ten years — whilst the Commission determines the facts of the case.
The problem with quasi-criminal safeguards
Admittedly, the DSA does provide for some safeguards, such as the obligation for the Commission to communicate preliminary objections, allow the platform to present its counter-arguments, and decide only on matters where there has been a hearing. This, however, takes place within a highly unbalanced procedure incompatible with the “Engel Criteria”, the principle established by the European Court of Human Rights according to which, when an administrative procedure involves the imposition of particularly severe sanctions, it must be conducted in accordance with the principles of criminal proceedings, that is, with the utmost safeguards.
The Temu case goes beyond Temu
It is not important whether or not Temu is responsible for the allegations made by the Commission — someone, somewhere, will judge and the law will take its course. What is important, however, are the questions raised by the way in which the DSA was drafted and is being applied; these go beyond the individual case, calling into question the legal foundations of the relationship between the EU and Member States.
In addition to the powers of direct intervention granted to the Commission, the DSA imposes on platforms what, beyond mere formalities, amounts to an extensive surveillance obligation concealed behind a veil of due diligence obligations, such as tracking sellers, assessing and mitigating risks, and adopting transparent processes.
On paper, these are more than reasonable obligations, but as always the devil is in the detail, as demonstrated by the additional obligation to cooperate with the “trusted flaggers” who are granted the power to report “illegal content” to platforms without a judge having declared it as such. The duty to cooperate with these modern informers represents, in fact, a powerful tool for surveillance and censorship, not only of sellers but also, and above all, of users.
All this means that, in practice, the DSA becomes an extremely powerful tool, removed from the control of national jurisdictions — that is, of national Constitutions — and placed in the hands of a body, the European Commission, which manages it with complete autonomy.
Perhaps this is a necessary step towards transforming the EU into a true and effective federal state; however, the desirability of the objective does not, in a Machiavellian sense, justify the means used to achieve it.