Temu's Remediation Plan: a Test of Article 75 (DSA) Supervised Remediation

Executive summary, why the Temu remediation plan matters for marketplace counsel

The application of the Digital Services Act’s Article 75 machinery to a very large online platform is among the most consequential enforcement developments European platform counsel are studying. In its enforcement action concerning Temu, the European Commission has focused on whether the marketplace properly identified, analysed and assessed the systemic risk that consumers would encounter illegal products on its platform. The supervised remediation route, running from a non-compliance decision through an action plan to a Board opinion, is designed to set practical signals for what counts as adequate evidence, governance and implementation timelines across the single market.

Three practical takeaways frame everything that follows:

• Evidence must be platform-specific. The Commission has been sceptical of reliance on generic, sector-wide e-commerce studies. Systemic-risk assessments increasingly demand telemetry and metrics drawn from the platform’s own data.
• Governance must be demonstrable. An action plan without named owners, senior oversight and a documented audit trail is unlikely to survive Board and Commission scrutiny.
• Timelines are enforceable. The remediation sequence runs on defined deadlines, and failure to comply can trigger periodic penalty payments on top of any fine.

Legal framework, Article 75 and the DSA supervised remediation process

Article 75 of Regulation (EU) 2022/2065 (the Digital Services Act, or DSA) establishes a supervised remediation procedure that may follow a Commission finding of non-compliance by a very large online platform (VLOP) or very large online search engine (VLOSE). Rather than simply imposing a penalty and closing the file, the Commission can supervise the platform’s steps to bring itself back into compliance, turning enforcement into a structured, monitored remediation exercise.

In plain terms, where the Commission adopts a non-compliance decision under Article 73, Article 75 enables it to require the platform to communicate, within a fixed period, an action plan setting out the measures it will take to end or remedy the infringement. The European Board for Digital Services may provide an opinion on that plan, and the Commission assesses whether the plan is capable of ending or remedying the infringement and monitors its implementation. The provision sits alongside the DSA’s broader enforcement architecture, including the obligations imposed on VLOPs and VLOSEs to assess and mitigate systemic risks (Articles 34 and 35) and the Commission’s powers to impose fines (Article 74) and periodic penalty payments (Article 76).

The procedural timeline in an Article 75 remediation

The supervised remediation sequence moves through defined stages, each with its own legal effect. Mapping the steps clarifies why the process matters for platform counsel across Europe.

The interaction between Article 75 and the wider DSA enforcement provisions is important. An action plan does not automatically extinguish any fine already imposed; it runs in parallel as a forward-looking corrective mechanism. Counsel should therefore treat the plan as both a compliance instrument and a piece of evidence that may later be scrutinised in litigation, because the standard the Commission applies here will shape how future assessments are judged.

The Temu enforcement action, findings on systemic-risk assessment

The Commission’s focus in the Temu matter has turned on the quality of the marketplace’s systemic-risk assessment. Under the DSA, VLOPs must diligently identify, analyse and assess the systemic risks flowing from the design, functioning and use of their services, including the dissemination of illegal content and the sale of illegal products. The Commission’s preliminary and subsequent findings have questioned whether Temu did this to the standard the regulation requires.

Three themes sit at the heart of the case and explain why the matter carries such weight:

• Inadequate identification of systemic risk. The Commission has raised concerns that Temu did not properly identify, analyse and assess the systemic risk that users would encounter illegal products on the platform.
• Reliance on generic evidence. The Commission has criticised reliance on generic e-commerce risk information, sector-level material that does not reflect the specific characteristics, scale or user behaviour of the platform itself, rather than interrogation of the platform’s own data.
• Underestimation of encounter likelihood. The concern is that the assessment underestimated the likelihood that EU users would actually encounter illegal items, because it was not sufficiently grounded in platform-specific measurement.

The evidential and governance dimensions of these findings are the real lesson for practitioners. The Commission did not merely disagree with a set of conclusions; it questioned the methodology and the data foundation on which those conclusions rested. That distinction matters because it shifts the compliance burden from writing a plausible risk narrative to building a defensible, data-driven analysis that can be audited and reproduced. Counsel should verify the precise findings, any fine and any procedural deadlines against the Commission’s official decision and press materials, as figures and dates in ongoing enforcement matters are subject to confirmation and appeal.

What an Article 75 action plan must cover, evidence, governance and remediation measures

An Article 75 action plan is not a policy statement. It is a structured remediation programme that must demonstrate, with evidence, how the platform will end or remedy the identified infringement. Read against the Temu concerns, the plan needs to answer three questions convincingly: has the systemic risk been re-assessed properly, are the mitigation measures concrete and owned, and can the platform prove its governance and methodology on demand?

Required components of the plan

A credible action plan should contain the following building blocks:

• Systemic-risk re-assessment. A fresh assessment that corrects the deficiencies the Commission identified, grounded in the platform’s own data rather than sector generalisations.
• Concrete mitigation measures. Specific interventions to reduce the likelihood that users encounter illegal products, each with an implementation date and a responsible owner.
• Monitoring and metrics. Key performance indicators that measure whether the mitigation is working, with a plan for periodic review and escalation.
• Governance and accountability. A clear line of responsibility from operational teams to senior oversight, showing who signs off and who is answerable.

Evidence expectations

The Temu matter makes clear that the Commission expects platform-specific evidence. The distinction between acceptable and unacceptable evidence is one of the most important practical takeaways from this line of enforcement.

• Stronger: platform-specific telemetry such as impression and encounter rates, takedown and repeat-offender data, user-encounter metrics broken down by Member State and user cohort, and geographic breakdowns of exposure to illegal listings.
• Weaker: generic sector-wide studies, competitor reports cited without underlying platform data, or qualitative assertions of “low risk” that are not supported by quantified measurement.

In practice, this means a systemic-risk assessment should be able to answer a quantitative question, for example, what estimated proportion of EU users are likely to encounter an illegal item, derived from platform logs, rather than resting on narrative reassurance.

Documentation and audit trail

Documentation is where many plans risk failing Board and Commission scrutiny. Because the action plan may later be tested in litigation, the audit trail should be complete and contemporaneous. Counsel should ensure the plan includes:

• Versioning. A version-controlled document showing how the plan evolved and who approved each iteration.
• Governance minutes and sign-offs. Records demonstrating that senior governance actually reviewed and endorsed the measures.
• Legal sign-off. Evidence that legal review was conducted and captured.
• Methodology appendix. A transparent explanation of the datasets used, the assumptions made and the test results supporting the risk conclusions.

Seven evidence items to consider for an Article 75 plan

1. Impression and encounter rate data for listings flagged as potentially illegal.
2. Takedown volumes and turnaround times, with trend analysis.
3. Repeat-offender seller metrics and enforcement outcomes.
4. Member State-level breakdowns of user exposure.
5. Quantified likelihood estimates for user encounters with illegal items.
6. KPI definitions and baseline measurements for each mitigation measure.
7. A methodology appendix documenting data sources and analytical assumptions.

The European Board for Digital Services, role and influence

The European Board for Digital Services is the independent advisory group composed of the national Digital Services Coordinators that supports the consistent application of the DSA. Within the Article 75 procedure, the Commission may seek the Board’s opinion on the platform’s action plan. Where sought, the Board’s opinion is the pivotal middle step between the platform’s submission and the Commission’s final determination.

The Board’s opinion can address the substance of the remediation measures, the adequacy of the evidence base and the credibility of the proposed implementation timeline. Crucially, the opinion is advisory rather than binding, but the Commission draws on it in framing its assessment. That gives the Board significant practical influence over the final shape of the remediation.

How prescriptive an opinion turns out to be will materially affect a platform’s obligations. Two scenarios are worth distinguishing:

• A permissive opinion would accept the broad thrust of the plan while flagging areas for improvement, leaving the platform room to implement on its own terms within reasonable deadlines.
• A prescriptive opinion would specify the evidence, metrics and governance the Commission should require, effectively narrowing the platform’s discretion and compressing implementation timelines.

The likely practical effect is that a more prescriptive opinion increases both the compliance burden and the litigation risk, because it creates concrete benchmarks against which non-implementation can later be measured. Counsel drafting plans for other platforms should therefore assume the Commission will hold subsequent assessments to a comparable standard.

Enforcement measures after a non-compliance decision, fines, periodic penalties and litigation risks

Article 75 is not the end of the enforcement toolkit; it is a stage within it. If a platform fails to implement its remediation measures or otherwise fails to comply with the Commission’s non-compliance decision, several tools become available.

• Non-compliance decision. The formal finding that the platform has breached its obligations, which underpins subsequent enforcement.
• Periodic penalty payments. Under Article 76, the Commission may impose recurring penalties designed to compel compliance. Unlike a one-off fine, these accumulate over time and are structured to escalate the cost of continued non-compliance.
• Obligation to comply. The platform remains under a continuing legal duty to bring itself into conformity, independent of any financial penalty.
• Judicial review. A platform may challenge a Commission decision before the General Court of the European Union, with a possible onward appeal on points of law to the Court of Justice, where the substantive legal battle over adequacy, proportionality and evidence may ultimately be fought.

The litigation dimension deserves particular attention. A platform challenging a non-compliance decision has several potential lines of argument: procedural, contending that the Commission failed to follow the correct process; proportionality, arguing that the measures required or the penalties imposed go beyond what is necessary; and evidential, disputing the factual basis of the Commission’s findings. Each of these depends heavily on the documentary record, which is precisely why the audit trail built into the action plan is so important. In any eventual challenge, the quality of that record may prove decisive.

Practical lessons for counsel advising marketplaces in Spain and the EU

The value of this developing precedent for practitioners lies in what it teaches about preparation. Marketplaces that wait until they receive a non-compliance decision will be building their evidence base under acute time pressure. The lessons below convert the Temu themes into an actionable programme.

Immediate compliance triage

• Data inventory. Catalogue the platform data available for measuring user encounters with illegal products, impressions, add-to-cart events, search-query returns, takedowns and repeat-offender records.
• Metrics mapping. Map each systemic-risk category to a quantifiable metric drawn from that data.
• Evidence gaps. Identify where the platform currently relies on generic assumptions and where platform-specific measurement is missing.

Remediation plan drafting best practices

• Timeline discipline. Build the plan around realistic but firm implementation dates, since the Commission will hold the platform to them.
• Governance embedded. Ensure the plan names owners, records senior oversight and captures compliance-officer sign-off.
• Internal sign-offs. Document each approval so the plan carries an auditable chain of accountability.

Litigation preparedness

• Document retention. Preserve the datasets, drafts and analyses that support the risk assessment.
• Decision logs. Keep contemporaneous records of why particular measures were chosen and why alternatives were rejected.
• Sworn declarations. Where appropriate, prepare declarations from those responsible for the methodology so the evidence can be authenticated later.

Cross-border coordination and Spanish considerations

For marketplaces active in Spain, it is worth remembering that supervision of VLOP systemic-risk obligations sits with the Commission, while national Digital Services Coordinators play a supporting role within the Board. In Spain, the designated Digital Services Coordinator is the Comisión Nacional de los Mercados y la Competencia (CNMC). Spanish counsel should track guidance from the CNMC and from professional bodies such as the Consejo General de la Abogacía Española, and should ensure that any parallel domestic litigation or consumer-protection exposure is coordinated with the EU-level supervision rather than treated in isolation.

Sample internal governance matrix

Comparison table, stronger versus weaker remediation plan elements

The following comparison distils the practical standard emerging from DSA systemic-risk enforcement into a working reference for counsel drafting or reviewing an Article 75 plan.

Conclusion, immediate next steps and watch-points

The Temu remediation matter is a reference point every marketplace counsel in Spain and the EU should be studying, because the Commission’s treatment of an Article 75 plan helps define the practical standard for systemic-risk remediation. Five watch-points deserve attention:

1. Any European Board for Digital Services opinion and how prescriptive it proves to be.
2. The Commission’s assessment of the plan and the implementation deadlines it fixes.
3. The evidential standard the Commission endorses, especially any preference for platform-specific data over generic sector evidence.
4. Any move to periodic penalty payments if implementation falls short.
5. Whether the platform seeks judicial review, which would test the procedural, proportionality and evidential grounds available to platforms.

Marketplaces should not wait for their own decision to arrive. Building a data inventory, mapping metrics, closing evidence gaps and embedding governance now is the surest way to turn the lessons of this enforcement into resilience against future action.

Sources

1. Regulation (EU) 2022/2065, Digital Services Act (DSA)
2. European Commission, Digital Services Act package
3. European Commission, Press Corner
4. European Parliament, Digital Services Act legislative file
5. Comisión Nacional de los Mercados y la Competencia (CNMC)
6. Consejo General de la Abogacía Española