Marketplaces vs. proprietary e-commerce websites: a comparative legal analysis for 2025

In e-commerce, effectively protecting this intellectual property becomes a major issue when it comes to ensuring the long-term viability of your business.

The choice between selling on established marketplaces (Amazon, Cdiscount, Fnac, etc.) and developing a proprietary e-commerce website is a major strategic decision for any business looking to grow its online presence.

While the commercial and marketing aspects of this alternative are frequently analysed, its legal dimension often remains underestimated, even though it profoundly impacts the business model, the customer relationship and the company's liability.

In 2025, as the regulatory framework governing electronic commerce undergoes unprecedented change, this legal perspective is becoming more decisive than ever.

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Marketplaces: apparent simplicity with complex legal implications

Marketplace platforms undeniably offer ease of access to the market, which appeals to many entrepreneurs. This operational convenience nonetheless comes with a particularly restrictive contractual environment whose legal implications warrant in-depth analysis.

The adhesion contracts imposed by major marketplaces constitute the first level of complexity. These voluminous documents, regularly updated unilaterally, define an extremely detailed framework for the seller's activity. The clauses relating to commissions, listing conditions or grounds for suspension often present a significant imbalance which, although sometimes legally questionable, is rarely challenged by individual sellers when faced with these digital giants.

The legal characterisation of the relationship between the seller and the marketplace also raises delicate questions. Is it merely technical hosting, intermediation, or an established commercial relationship within the meaning of the Commercial Code? This characterisation, far from theoretical, determines the respective liabilities of the parties, particularly in the event of a dispute with a consumer or the termination of the relationship.

The European Digital Services Act (DSA) and Digital Markets Act (DMA) also introduce new obligations for very large online platforms, creating a two-tier regime. These regulations considerably strengthen the requirements for algorithmic transparency and seller traceability, while more strictly framing the conditions imposed on businesses using these platforms.

Data management is another major issue. By selling on a marketplace, the merchant generally gives up much of the control over customer data and sales statistics. The platforms' terms of use frequently contain clauses authorising the exploitation of this data for purposes that are sometimes competitive. This loss of control represents a significant strategic risk in the medium term, particularly in sectors where data constitutes a differentiating asset.

The ambivalent legal status of the marketplace seller

The legal status of the marketplace seller presents a fundamental ambivalence that generates significant areas of uncertainty. This hybrid position, between independence and subordination, creates a specific liability framework that must be fully understood.

Product liability perfectly illustrates this complexity. While the seller theoretically remains fully responsible for the conformity and safety of the products it markets, marketplaces are taking on a growing role in quality control and prior verification. Some platforms now impose certification or audit processes which, while strengthening consumer protection, create a form of de facto joint liability. This trend is reinforced by recent case law, which tends to more readily recognise the subsidiary liability of platforms, particularly for products shipped from third countries.

Pre-contractual information obligations constitute another area where the allocation of responsibilities proves delicate. While the seller must provide all the legal information (essential characteristics, price, delivery times, warranties), the standardised presentation imposed by marketplaces can sometimes complicate full compliance with these obligations. The restrictive format of product listings or the impossibility of including certain specific statements can create tension between the platform's requirements and the seller's legal obligations.

Dispute management also illustrates this status-related ambiguity. Marketplaces generally impose their own dispute resolution procedures, often more restrictive than legal requirements. The growing automation of these processes, based on arbitration algorithms, can sometimes lead to decisions unfavourable to the seller without any real possibility of challenge. This forced mediation is added to traditional legal remedies without necessarily replacing them, creating an overlap of potentially contradictory regimes.

Consulting an e-commerce lawyer proves particularly valuable in navigating this complexity and structuring a legally secure marketplace activity. Their expertise notably makes it possible to identify problematic clauses in platform contracts and to develop risk mitigation strategies tailored to each situation.

The specific constraints of proprietary e-commerce websites

In contrast to the marketplace model, operating a proprietary e-commerce website offers maximum decision-making autonomy but comes with direct and full legal liability. This independence entails mastering a particularly dense and constantly evolving regulatory framework.

Documentary compliance constitutes the first level of requirement. The website must display all the mandatory legal notices, comprehensive general terms and conditions of sale, a privacy policy compliant with the GDPR, and various other legal documents (terms of use, cookie policy, etc.). These documents must be regularly updated to reflect legislative developments and changes to the commercial offering. Unlike marketplaces, which partially share this burden, the independent e-merchant bears this documentary responsibility alone.

The website's technical architecture must also comply with numerous legal obligations. Accessibility for people with disabilities is gradually becoming mandatory with the entry into force of the European Accessibility Act. Securing payments involves compliance with PCI-DSS standards. Cookie information requires consent-collection mechanisms compliant with the CNIL's latest guidelines. These technical constraints with a legal purpose require close coordination between technical teams and legal expertise.

Taxation is another area where the proprietary website assumes direct responsibility. Determining the applicable VAT rate according to the nature of the products and the location of customers, managing reporting obligations in an international context, or ensuring compliance with electronic invoicing rules requires specific expertise. An error in the tax classification of a product or the omission of a reporting obligation can result in significant reassessments that the merchant will bear in full.

Logistics management also entails direct legal liability. Compliance with announced delivery times, conformity of transport processes with applicable regulations (particularly for regulated products), or managing returns in compliance with the right of withdrawal require operational and legal mastery that marketplaces considerably simplify thanks to their established infrastructures.

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New legal responsibilities regarding environmental and societal matters

The year 2025 marks a significant turning point in the integration of environmental and societal considerations into the legal framework of e-commerce. This development affects marketplaces and proprietary websites differently, creating new obligations but also opportunities for differentiation.

The AGEC law (Anti-Waste for a Circular Economy) has considerably strengthened the requirements regarding information on the repairability and durability of products. The obligation to display a repairability index for many categories of electronic products is being gradually extended, creating a significant documentary burden. On marketplaces, this responsibility is generally shared between the platform and the seller, with standardised procedures that simplify compliance but limit the possibilities for customisation. Conversely, a proprietary website bears this obligation in full but can turn this constraint into a differentiating commercial argument.

The environmental labelling of products is also gradually becoming mandatory, with specific calculation methodologies depending on the sector. This development poses particularly complex data collection and validation challenges for large catalogues. The major marketplaces have developed automated tools to facilitate this compliance, whereas proprietary websites often have to develop their own solutions or call on specialised service providers.

Extended producer responsibility (EPR) is another area undergoing significant change. The obligations to contribute to eco-organisations are being extended to new sectors and the reporting procedures are becoming more complex. Marketplaces now assume subsidiary liability for sellers who fail to comply with their obligations, creating an additional level of oversight that is potentially reassuring for sellers less informed about regulatory developments.

Due diligence regarding human rights in the supply chain is also becoming an increasing requirement, particularly for imported products. The European directive on the duty of vigilance, currently being transposed, is gradually extending these obligations to medium-sized companies. Marketplaces generally impose their own compliance standards, sometimes stricter than legal obligations, whereas proprietary websites must develop their own verification processes.

The customer experience: between standardised constraints and legal customisation

The customer experience is an area where the opposition between marketplaces and proprietary websites is expressed with particular intensity. This dimension, often analysed from a marketing perspective, also entails significant legal implications that deserve to be integrated into strategic thinking.

The purchasing journey on a marketplace is generally standardised according to proven models that guarantee minimal compliance with legal requirements. This standardisation facilitates compliance but considerably limits the possibilities of adapting to the specific features of each activity. Conversely, a proprietary website allows complete customisation of the conversion funnel, but requires constant vigilance to maintain its legal compliance at every stage.

The returns policy perfectly illustrates this dichotomy. The major marketplaces generally impose standardised return conditions, often more favourable than legal requirements, creating significant competitive pressure. A proprietary website enjoys greater freedom in defining its policy, but must at a minimum comply with the legal framework of the right of withdrawal while remaining competitive against market standards.

Marketing personalisation also raises distinct legal questions depending on the chosen model. On a marketplace, targeting possibilities are generally predefined by the platform, with built-in compliance guarantees but limited granularity. A proprietary website allows much finer personalisation strategies, but entails direct responsibility for GDPR compliance, particularly regarding the legal basis for processing and the management of consents.

Loyalty programmes present specific legal issues that are rarely anticipated. On a marketplace, these programmes are generally managed by the platform itself, considerably limiting the seller's autonomy. A proprietary website makes it possible to develop bespoke mechanisms, but must comply with a strict regulatory framework, particularly regarding the validity period of benefits, the conditions for modifying the programme, or the prior information obligations.

Intellectual property and digital identity: digital sovereignty at stake

The question of intellectual property and, more broadly, of control over one's digital identity constitutes a major axis of differentiation between the two models, with structuring legal implications in the long term.

On a marketplace, the protection of original creations (visuals, descriptions, product innovations) can prove particularly delicate. The risk of copying by competitors present on the same platform is significantly increased by the proximity and immediate visibility of the offerings. The infringement reporting mechanisms put in place by the platforms offer variable responsiveness and generally require formal proof of ownership that small structures sometimes struggle to produce quickly.

Keyword referencing also raises complex questions regarding trademark law. The use of competing trademarks in metadata or advertising campaigns follows subtle case-law rules that vary across jurisdictions. On a marketplace, automated control algorithms often apply standardised rules that can block otherwise legitimate practices, with no real recourse for the seller.

Customer data is probably the most strategic issue. On a marketplace, the seller generally has no direct access to buyers' personal data and has very limited room for manoeuvre to develop a direct relationship. The platforms' terms of use frequently include clauses authorising the use of transactional data for optimisation purposes or for their own commercial development, creating an implicit competitive risk. A proprietary website, by contrast, guarantees complete control of the customer relationship, but entails direct responsibility for data protection.

Brand identity itself can be weakened by an exclusive presence on a marketplace. The standardisation of product listings, the impossibility of fully expressing the brand's values, or the immediate juxtaposition with competing offerings gradually dilute the distinctive identity. This erosion, difficult to quantify, represents a long-term legal risk for the distinctiveness of the brand and its protection.

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Hybrid models: legal optimisation and strategic balance

Faced with the diversity of legal issues raised by each model, many companies develop hybrid strategies that aim to combine the advantages of both approaches while minimising their respective drawbacks. These multi-layered strategies require particularly rigorous legal structuring.

Differentiating the offering across channels is a first approach. It consists in offering distinct product ranges or variants on the marketplace and on the proprietary website, thereby limiting direct price comparison and distribution conflicts. This strategy, legally valid as long as it does not constitute prohibited territorial discrimination, nonetheless requires particular vigilance regarding the consistency of product information and the warranties offered.

Temporal segmentation represents an interesting alternative, particularly for companies in a transition phase. Using marketplaces as an initial acquisition channel and then gradually directing customers towards the proprietary website for recurring purchases makes it possible to benefit from the visibility of the platforms while developing a direct relationship. This approach nevertheless requires a careful analysis of the marketplaces' terms of use, which frequently contain restrictive clauses regarding direct communications with customers or incentives to purchase off the platform.

Technical integration via APIs or middleware solutions constitutes a third avenue. It makes it possible to simultaneously manage the proprietary website and several marketplaces from a single interface, considerably simplifying catalogue updates and stock synchronisation. This technical approach nevertheless requires meticulous legal harmonisation, particularly regarding the channel-specific GTC or the returns policies that may vary significantly.

The corporate structure itself can be optimised to reflect this hybrid strategy. Creating distinct entities for each channel allows for the isolation of legal risks and potential tax optimisation, at the cost of increased administrative complexity. This separation also facilitates the differentiated valuation of assets in the event of a partial sale or a search for investors.

Legal decision-making criteria for an informed choice

Beyond commercial or operational considerations, several specifically legal decision-making criteria deserve to be integrated into strategic thinking in order to determine the model best suited to each situation.

The nature of the products marketed is a first determining factor. Products subject to specific sector regulations (cosmetics, food, electronic products) entail particularly demanding information, traceability or compliance obligations. For these categories, marketplaces often impose restrictive but potentially reassuring prior validation procedures, whereas a proprietary website offers greater flexibility in presenting regulatory information but requires more developed internal expertise.

The available legal resources represent a second crucial criterion. A company with solid in-house legal expertise or regular external support will more easily be able to assume the full responsibility that a proprietary website entails. Conversely, a small structure with limited resources may find in marketplaces a partially secured framework, despite the constraints it imposes.

The international development strategy also influences the optimal choice. For a first approach to foreign markets, marketplaces offer a relatively simple testing solution, with partially shared legal obligations. The deployment of localised proprietary websites, by contrast, entails complete legal adaptation to the specific features of each territory (legal notices, GTC, taxation), but allows for maximum customisation of the customer experience.

The level of innovation of the products or of the business model constitutes a fourth decision-making factor. Particularly innovative or disruptive offerings may come up against the limitations of the standardised forms of marketplaces, which generally reflect established business models. A proprietary website allows for legally framed but non-standardised creative freedom, fostering the emergence of genuinely differentiating propositions.

The 2025 horizon: anticipating the legal developments to come

The legal landscape of e-commerce is currently experiencing an unprecedented regulatory acceleration that is gradually altering the balance between marketplaces and proprietary websites. Several major developments expected by 2025 deserve to be anticipated in order to inform current strategic choices.

The strengthening of platforms' obligations is continuing with the gradual application of the European Digital Services Act (DSA) and Digital Markets Act (DMA). These texts impose specific obligations on very large platforms regarding algorithmic transparency, seller traceability and data sharing. These new constraints could paradoxically strengthen the appeal of marketplaces by creating a fairer and more transparent environment for professional sellers.

The overhaul of the liability framework regarding defective products could also alter the current balance. The European directive in preparation extends the notion of producer to platforms in certain circumstances, particularly when they exercise a decisive influence over the offering. This development would strengthen the legal certainty of marketplace sellers but would probably be accompanied by increased control over the products marketed.

The harmonisation of VAT rules is also continuing at the European level, with a simplification of reporting obligations for cross-border e-commerce. The One Stop Shop (OSS) system, already operational, should see its scope gradually extended, reducing the comparative advantage of marketplaces that currently offer simplified management of these obligations.

Personal data protection is also undergoing significant developments with the emergence of new tracking technologies and the adaptation of the regulatory framework. The entry into force of the ePrivacy Regulation, expected shortly, could profoundly change personalisation and ad-targeting practices, with differentiated implications depending on the models.

The informed decision: beyond the binary choice

The choice between marketplace and proprietary website now transcends the simple binary alternative to form part of a comprehensive strategic reflection on the company's digital positioning. This decision, with major legal implications, deserves an in-depth analysis incorporating all the dimensions mentioned.

Support from a legal expert familiar with the specific features of electronic commerce is a decisive asset in informing this reflection. Their ability to anticipate regulatory developments, to objectively assess the risks associated with each model and to legally structure hybrid strategies makes it possible to sustainably secure the company's digital development.

Beyond legal considerations, this decision engages the very identity of the company in the digital universe. Between the strategic autonomy of the proprietary website and the operational power of marketplaces, each model carries a distinct vision of the customer relationship and commercial positioning. It is ultimately in the consistent alignment between this strategic vision and its legal translation that the key to successful and sustainable e-commerce development lies.