The recent judgment of the Administrative Court in Uppsala, Sweden, is one of the first in which a court in an EU member state interpreted the Digital Services Act (DSA). The court examined whether the national medical products regulator imposed a general monitoring obligation on two online intermediaries. The court answered in the negative: there was no imposition of a general obligation, and therefore no DSA violation.
Online sale of products that are not authorised for sale in Sweden
The court reviewed and, on the main points, confirmed two decisions of the Swedish Medical Product Agency (“Läkemedelsverket“), both dated 21 October 2024. The decisions concern two Swedish companies, the parent company CDON AB and its wholly owned subsidiary Fyndiq AB. These companies operate e-commerce platforms where independent traders, as users of the platforms, can put various categories of products up for sale. The products include veterinary medicines. During the summer of 2024, Läkemedelsverket requested that Fyndiq AB and CDON AB remove from the platforms the veterinary medicines that are authorised for sale in other EU member states but not in Sweden and prevent their reappearance.
Fyndiq AB and CDON AB subsequently claimed to have removed the products from the platforms. Soon after that, those medicines appeared again on the platforms as products for sale, together with some others that were also not authorised for sale in Sweden. For that reason, on 21 October 2024, Läkemedelsverket formally adopted the decisions prohibiting the companies from marketing any veterinary products that are authorised for sale in other EU member states but not in Sweden. Each time either company violates the prohibition, it would have to pay 200,000 Swedish krona (approx. EUR 17,785).
Fyndiq AB and CDON AB appealed to the Administrative Court in Uppsala, which issued its decision on 26 June 2025.
The court rejected the argument by the companies that the issuance of a continuous penalty payment amounts to the imposition of a general obligation on the hosting providers (e-commerce platforms) to monitor the information that they store. The two companies claimed that, in order to honour Läkemedelsverket‘s prohibition, they must monitor all parts of the platform. Only in that way can they prevent that veterinary medicines authorised for sale in other member states but not in Sweden appear on the platform. In the opinion of the companies, this amounts to a general obligation to monitor, which Article 8 of the DSA explicitly prohibits.
The court reached a different conclusion: there is no general obligation to monitor when the scope of the prohibited products is clearly delimited. In this instance, the order of the Läkemedelsverket concerns the specific category of veterinary medicines. Fyndiq AB and CDON AB can establish which products belong to that category, because the decisions by Läkemedelsverket include a reference to the European Medicines Agency’s (EMA) database of veterinary medicines that have authorisation within the EU.
The court only amended the part of the Läkemedelsverket‘s decisions concerning the amount of the penalty payment. Based on a proportionality assessment, the court considered that a continuous fine of 50,000 Swedish krona per violation, i.e., one-fourth of the original amount, was sufficient.
The monitoring obligation is “in the specific case” (DSA recital 30), not “general”
There is little analysis in the judgment of the key concepts involved: a general obligation to monitor, on the one hand, and a monitoring obligation “in the specific case”, on the other.
DSA Article 8 explicitly disallows the imposition of the general obligation to monitor the information that online intermediaries transmit or store. This prohibition is identical to that under the e-Commerce Directive (Article 15, No general obligation to monitor). However, both the DSA and the e-Commerce Directive add, in recitals (30 and 47, respectively), that “this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation”. In other words, national regulatory authorities may lawfully impose a monitoring obligation in a specific case.
As explained above, Fyndiq AB and CDON AB claimed that, if they were to ensure that no unauthorised product would be made available for sale by any user of the e-commerce platforms, the two companies would have to monitor all parts of their online platforms. In the opinion of the companies, this means that they have a general obligation to monitor.
That argument is not convincing. If Fyndiq AB and CDON AB were right, there would be no room for the use of what recitals 30 of the DSA and 47 of the e-Commerce Directive allow: imposition of the monitoring obligation “in a specific case”. Monitoring in a specific case means monitoring for specific content (as emphasized by professors Sentfelban and Angelopoulos). Such monitoring inevitably requires monitoring of the totality of the content on the platform’s website. So, the (impermissible) “general obligation to monitor” must mean something else, and not the obligation to monitor the entire platform. There is no consensus or clarity as to what the “general obligation to monitor” means, but the safest approach is to understand it as an obligation to monitor for potentially infringing content that is not specified with respect to the subject matter and infringers. In the Swedish case, there was no general obligation to monitor because Läkemedelsverket gave sufficiently clear criteria for the identification of the content to monitor.
Absent from the analysis: proportionality
A more controversial issue, not addressed by the court, is the potentially excessive nature of Läkemedelsverket‘s order. Under the DSA (Articles 6(4) and 9), national judicial or administrative authorities may order providers of intermediary services to act against one or more specific items of illegal content, which is what Läkemedelsverket did in this case. However, the orders to act should not subject the providers of intermediary services “to any disproportionate burdens” (recital 31 of the DSA). The judgment of the Administrative Court in Uppsala does not address proportionality, but there are at least two aspects in which the proportionality of Läkemedelsverket‘s prohibition deserves consideration.
The list of veterinary medicines that are authorised in other EU member states but not in Sweden is a moving target. Fyndiq AB and CDON AB need to check, arguably daily, the most up-to-date European Medicines Agency’s (EMA) database of veterinary medicines and an equivalent list for Sweden. Is that effort proportionate?
Perhaps more importantly, the decision does not deal with the ability of the hosting providers to locate infringing products on their platforms. Perhaps the court considers it self-evident that a hosting provider must have such tools at its disposal that allow for regular scanning of the large platforms, to locate infringing content. But Fyndiq AB and CDON AB have claimed, in the interactions with Läkemedelsverket and in the trial before the Administrative Court, that they were already using automated means to block sale offers and recategorize products, and yet, infringing content found its way onto the platforms. Is it, then, proportionate to require from the two companies to perfect their automated systems to the point at which no unauthorised product may sneak into the platform?
Given the importance of the prevention of the sale of unauthorised veterinary medicines online, it is likely that the Administrative Court would have concluded that the requirement of proportionality was met. Still, it is a pity that the decision lacks any analysis of proportionality.
