EU Court Advocate General follows the Commission’s lead: TikTok is a gatekeeper
Bytedance’s appeal, which designates the platform as a ‘filter’ under the Digital Markets Regulation, should be dismissed
Key points
Advocate General Andrea Biondi’s Opinion in Case C-627/24 is clear: the Court of Justice of the European Union should dismiss the appeal brought by Bytedance (the Chinese company that owns TikTok) against the European Commission’s decision designating TikTok as a gatekeeper under Digital Markets Regulation. And it is precisely this EU Regulation 2022/1925 that is, for the first time, the subject of a case brought before the Court of Justice: the Advocate General has, in fact, clarified when the Commission must investigate a company’s objections to being designated as a gatekeeper and how its right to be heard must be respected.
The context
It is worth bearing in mind the context in which this case is taking place. The regulation on digital markets was introduced with the aim of ensuring that these markets are fair and competitive, by imposing obligations on firms designated as gatekeepers with regard to core platform services. An undertaking that meets the quantitative thresholds set out in the Regulation is therefore presumed to be a gatekeeper, but the undertaking has the right to submit arguments and evidence challenging the applicable presumptions.
In September 2023, the European Commission had designated ByteDance as a gatekeeper in respect of TikTok, which it classified as an online social networking service. ByteDance had argued that, whilst it met the relevant thresholds, it should not have been designated as such. The Commission had considered that its arguments did not sufficiently challenge the resulting presumptions and had reached this decision without launching a market investigation. The General Court had dismissed ByteDance’s application, which had consequently lodged an appeal before the Court of Justice.
Conclusions
Advocate General Andrea Biondi’s Opinion in Case C-627/24 essentially centres on three points:
- market survey and challenge to the presumptions;
- being a significant access point for users;
- the right of the undertaking to be heard.
As regards the first point, according to Advocate General Biondi, given that the Commission has no discretion to initiate a market investigation when an undertaking puts forward arguments that clearly call into question the presumptions, if those arguments are not sufficiently well-founded, it is appropriate for the Commission to be able to reject them without conducting an investigation. The undertaking, for its part, must put forward sufficiently convincing arguments that seriously challenge the presumptions of the EU regulation. However, at this preliminary stage, it is not required to prove conclusively that it is not a gatekeeper. The Advocate General considered, in fact, that the General Court’s judgment applied the correct standard when examining the Commission’s assessment of ByteDance’s arguments.
