Summary

• Advocate General Andrea Biondi has recommended dismissing ByteDance's appeal over TikTok's gatekeeper designation.
• The opinion examines the evidence required to challenge the presumptions created by meeting DMA thresholds.
• The recommendation is non-binding, and the Court of Justice has not delivered its final judgment.

TikTok’s attempt to overturn its classification as a gatekeeper under European competition rules has encountered another legal obstacle, after an adviser to the Court of Justice of the European Union recommended rejecting the appeal brought by its parent company, ByteDance.

Advocate General Andrea Biondi issued his opinion on 15 October in case C-627/24 P, concerning the European Commission’s decision to designate ByteDance as a gatekeeper for TikTok under the Digital Markets Act. His recommendation is not binding on the Court, which must still deliver its own judgment.

The case addresses how a technology company can challenge the presumption of gatekeeper status when its operations meet the legislation’s quantitative thresholds. It also examines the circumstances in which the Commission must investigate objections and the procedural rights of companies disputing designation.

ByteDance was designated in September 2023, with TikTok classified as an online social networking service. The company contested the assessment, arguing that its characteristics and competitive position did not justify applying the DMA’s gatekeeper requirements.

The General Court dismissed that challenge in July 2024, and ByteDance subsequently appealed. The proceedings became the first Digital Markets Act case to reach the Court of Justice, establishing an early opportunity to clarify how the new regulatory framework should be interpreted.

The DMA imposes obligations on companies considered important gateways between businesses and consumers. These include rules governing aspects of platform access, commercial practices and competition between services, with the aim of limiting behaviour that could reinforce entrenched market positions.

Meeting the threshold creates a rebuttable presumption

Companies that satisfy the DMA’s specified thresholds are presumed to meet the criteria for gatekeeper status. They can submit evidence challenging that presumption, but the existence of competing services or disagreement with the Commission’s assessment does not automatically trigger a detailed market investigation.

Biondi considers that the company must present arguments sufficiently substantiated to call the relevant presumptions manifestly into question. Where those conditions are met, the Commission may need to investigate further; where they are not, it can reject the challenge without proceeding to a more extensive examination.

This establishes a distinction between the ability to raise objections and the evidential threshold necessary to require additional regulatory work. A company is not expected to prove conclusively at the outset that it falls outside the legislation, but it must do more than offer speculative doubts about its market position.

ByteDance’s arguments included TikTok’s position relative to established technology companies, the absence of an ecosystem comparable with those of some major competitors and evidence that users participate in multiple social networks.

That last point concerns multi-homing, where consumers use several platforms rather than relying on one service exclusively. The existence of such behaviour may affect competitive dynamics, but it does not necessarily prevent a platform from functioning as an important route through which businesses reach a large audience.

The Advocate General’s analysis supports the distinction between competition for users and control over the commercial relationships enabled by a platform. A service can compete vigorously for attention while still exercising substantial influence over the way businesses reach a large audience.

For platform operators, this makes the nature of the evidence especially important. User numbers, the ability of businesses to reach customers elsewhere, switching behaviour and the durability of a platform’s position may all be relevant, but they must be evaluated against the specific conditions established by the legislation.

The appeal also tests procedural rights

ByteDance challenged aspects of the procedure used to assess its submissions. Biondi’s opinion considers the scope of the company’s right to be heard and whether the Commission was required to provide another opportunity to respond before reaching its designation decision.

He concluded that the company had been able to present its objections and that the Commission was not required to reopen the process in the circumstances described. He also proposed corrections to parts of the General Court’s reasoning while retaining the recommended outcome against ByteDance.

The distinction illustrates how appellate proceedings can clarify legal reasoning without changing the result of a case. It also matters for other businesses preparing challenges, because procedural objections and arguments about market position must each satisfy their own legal requirements.

The opinion does not establish that TikTok has breached the substantive obligations of the Digital Markets Act. Designation determines whether a company falls within the regime; enforcement proceedings addressing particular commercial practices involve different legal questions.

Nor should the case be confused with TikTok’s separate proceedings under European data protection rules. Those disputes concern the handling of personal information and other statutory obligations, rather than the Commission’s classification of TikTok as a commercial gateway.

The distinction is relevant as technology companies face overlapping regulatory frameworks. A platform may be subject to requirements concerning competition, online safety and privacy, but each regime has its own legal tests, responsible authorities and enforcement mechanisms.

Although Biondi’s recommendation provides an indication of how the Court might approach the appeal, the judges are not required to follow it. Their eventual ruling will determine whether the Commission’s designation survives and will provide further guidance on how companies can rebut gatekeeper presumptions under the DMA.