The legal status of marketplaces: between intermediary and merchant

The legal status of marketplaces is a fundamental issue and is defined between 2 categories: intermediary and merchant.

In the e-commerce ecosystem, marketplaces hold a leading position, accounting for more than 60% of online sales in 2025.

These platforms, which connect sellers and buyers, nevertheless operate in a complex and constantly evolving legal environment.

The legal characterisation of their activity is a fundamental issue, as it determines the scope of their obligations and the liability regime applicable to them.

If you wish to call upon a lawyer specialising in e-commerce law, contact me!

The duality of applicable legal regimes

The legal framework applicable to marketplaces is characterised by a fundamental duality: depending on their degree of involvement in the transactions they facilitate, they may be characterised as technical intermediaries or as genuine merchants. This distinction, far from being purely theoretical, carries considerable legal consequences.

The 2000 e-commerce Directive, transposed into French law, established a reduced liability regime for technical intermediaries. As hosting providers, platforms benefit from a limitation of liability concerning the content they store, provided that they are not aware of its unlawful nature or that they act promptly to remove it as soon as they are informed of it.

Conversely, where a marketplace actively intervenes in the transaction, it may be characterised as a publisher or a merchant. This characterisation entails strict liability for the content disseminated and the products sold. The resulting obligations are then considerably more onerous, particularly with regard to pre-contractual information, warranties and product conformity.

The qualification criteria established by case law

The boundary between these two regimes has been progressively clarified through court decisions, both at the French and European levels. Several decisive criteria have emerged from this case law to characterise the precise role of a marketplace.

The degree of control exercised over the offers is a first major factor of assessment. A platform that merely passively stores sellers' listings, without intervening in their content or presentation, will more easily be able to claim hosting provider status. Conversely, a platform that verifies, modifies or enriches these listings moves away from this protective status.

Involvement in the transaction represents another decisive criterion. Where the marketplace receives a commission proportional to the amount of sales, handles payments or intervenes in the logistics process, it adopts conduct that is more akin to that of a merchant than to that of a mere technical intermediary.

The active promotion of products is also a strong indicator of reclassification. A platform that highlights certain offers, recommends products to users or provides advanced search functionalities moves away from the passive role characteristic of a hosting provider. The Tiffany v. eBay judgment in the United States, followed by several decisions in Europe, marked a turning point in this analysis. Case law now recognises that a marketplace may have a hybrid role, benefiting from hosting provider status for certain aspects of its activity while being subject to stricter obligations for others.

Let's discuss your needs for 15 minutes!

The impact of the Uber case on the qualification of digital platforms

The Uber judgment handed down by the Court of Justice of the European Union in 2017 considerably enriched the analysis of the legal status of platforms. Although it initially concerned a connection service in the transport sector, this decision established principles that are transposable to marketplaces.

In this landmark case, the Court held that Uber was not a mere technical intermediary but rather an organised transport service. Several factors underpinned this characterisation: the decisive influence exercised over the conditions of provision (pricing, quality standards), the relationship of subordination created with drivers, and the control exercised through the application.

By analogy, a marketplace that sets the prices of the products sold, imposes strict standards on sellers and exercises close control over their activities exposes itself to reclassification. This development in case law has led many platforms to rethink their operating model in order to preserve their intermediary status.

The theory of the online platform operator developed by the French legislator complements this analytical framework. This concept, introduced by the Law for a Digital Republic, recognises the specific nature of digital platforms and imposes on them tailored obligations, particularly with regard to transparency about their operation.

The practical consequences of legal qualification

The implications of the legal qualification of a marketplace are manifold and affect every aspect of its activity. Understanding these consequences is essential for operators seeking to secure their business model.

In terms of civil liability, a marketplace characterised as a hosting provider benefits from a favourable regime. Its liability can only be engaged if, having knowledge of the unlawful nature of content, it fails to act promptly to remove it. Conversely, a platform characterised as a merchant is directly liable for the defects of the products sold, even if it is not the manufacturer.

With regard to information obligations, the differences are also marked. A mere intermediary must primarily ensure transparency concerning its role and operation. An operator reclassified as a merchant must, for its part, comply with all the provisions of the Consumer Code relating to pre-contractual information, which are particularly demanding in matters of distance selling.

The tax implications are no less significant. A marketplace acting as an intermediary simply facilitates transactions between sellers and buyers, with VAT being collected by the sellers. If it is characterised as a reseller, it becomes liable for VAT on the full sale price, which can considerably affect its profitability.

Faced with these complex issues, many platforms seek the expertise of an e-commerce lawyer to analyse their operating model and anticipate the risks of reclassification. This preventive approach makes it possible to identify points requiring attention and to adjust processes before litigation arises.

The evolution of the European legislative framework

The legal framework applicable to marketplaces is currently undergoing a profound transformation with the recent adoption of new European legislation. These texts clarify and sometimes redefine the status of digital platforms.

The Digital Services Act (DSA), which came fully into force in 2025, maintains the principle of limited liability for hosting providers while considerably strengthening their obligations. Notice and takedown procedures are now strictly regulated, with binding deadlines and increased transparency obligations.

The DSA also introduces the concept of "due diligence" that platforms must exercise. This notion entails the implementation of proactive measures to prevent unlawful conduct, without however imposing a general monitoring obligation. This balanced approach aims to hold marketplaces accountable while preserving their business model.

The Digital Markets Act (DMA) complements this framework by specifically targeting platforms designated as "gatekeepers". For these dominant players, additional obligations apply, particularly with regard to interoperability and non-discrimination between sellers. These provisions reflect the European legislator's intention to take account of the particular position held by certain marketplaces in the digital ecosystem.

I want reliable legal documents!

The adaptation strategies of marketplaces

Faced with the evolution of the legal framework and case law, marketplaces have developed various strategies to secure their status and limit their exposure to reclassification risks.

Clarifying the intermediary role is a first approach. Many platforms have revised their general terms of use to make clear their positioning as a mere facilitator of transactions between independent sellers and buyers. This transparency is reinforced by prominent statements on the website, systematically reminding users that the marketplace is not a party to the sales contract.

The review of operational processes represents another line of adaptation. Some platforms have deliberately reduced their involvement in transactions, for example by limiting their role in price setting or by leaving sellers greater autonomy in managing their offers. This distancing aims to reinforce their status as technical intermediaries.

The development of optional services is a pragmatic approach, making it possible to reconcile user expectations with legal certainty. Rather than integrating certain potentially problematic functionalities into their core offering, marketplaces now offer clearly distinct ancillary services (logistics, warranty, etc.), subscribed to separately by sellers who wish to do so.

New hybrid models: reconciling legal certainty and quality of service

The future of marketplaces seems to be moving towards more sophisticated hybrid models, designed to navigate skilfully between the various legal regimes while guaranteeing an optimal user experience.

The augmented marketplace model combines a technical intermediation infrastructure with clearly identified additional services. By explicitly separating these two dimensions, the platform can maintain its hosting provider status for the connection activity while developing value-added services subject to a distinct legal framework.

The modulation of involvement according to product categories represents another emerging trend. Some platforms adopt a differentiated approach, limiting their intervention for standard products while exercising closer control over sensitive or high-risk categories. This strategy makes it possible to adapt the level of liability to the specific level of risk of each segment.

The emergence of specialised sector-specific marketplaces is also part of this dynamic of adaptation. By focusing on a specific sector, these platforms can develop sharp expertise and offer a legal framework perfectly suited to the particularities of their field, thereby optimising legal certainty without compromising the quality of service.

Building a legally secure marketplace: a strategic necessity

The question of the legal status of marketplaces goes far beyond a mere legal concern and asserts itself as a major strategic issue. In an increasingly competitive market and faced with ever more demanding consumers, securing the legal soundness of the model becomes a genuine differentiating factor.

Platforms that succeed in building a solid legal framework consistent with their positioning enjoy a lasting competitive advantage. This approach enables them not only to limit the risks of costly litigation, but also to establish a relationship of trust with all the players in their ecosystem: sellers, buyers and partners.

The growing complexity of the regulatory framework and case law makes constant vigilance and a capacity for rapid adaptation indispensable. The marketplaces that succeed are those that fully integrate the legal dimension into their development strategy, anticipating changes rather than enduring them. From this perspective, legal support becomes a strategic investment, ensuring the sustainability and long-term growth of the platform.