TikTok Remains Gatekeeper – Appeal against EU Fails

Mar 8, 2024 Benn-Ibler Rechtsanwälte

Under the EU’s Digital Markets Act (DMA), ByteDance Ltd, which operates the TikTok video portal, recently applied to suspend the EU Commission’s decision to designate TikTok as a gatekeeper, but failed.

The DMA is an EU regulation aimed at ensuring fair competition to protect the contestability of digital services by regulating gatekeepers. Gatekeepers are companies that have a strong economic position with a significant impact on the binary market and are active in several EU countries. They are subject to a number of obligations as well as prohibitions in order to prevent them from favouring their own digital products and services.

ByteDance Ltd is a non-operational holding company established in China in 2012 and is the provider of the TikTok entertainment platform. By a decision of 5 September 2023, the Commission designated Byte-Dance as a gatekeeper for the purposes of the DMA. In November 2023, Byte-Dance brought an action for annulment of the Commission’s decision and also an application for interim measures for the suspension of the Commission’s decision. The president of the ECJ has now dismissed Byte-Dance’s application for interim measures for the following reasons:

ByteDance has not shown that it was necessary to suspend the contested decision pending the outcome of the main proceedings in order to avoid serious and irreparable damage to the company.

According to ByteDance, the risk is that undisclosed and highly strategic information on TikTok’s user-profiling practices may become public. This would significantly harm TikTok’s business by allowing third parties to learn about TikTok's business strategies.

However, the decision was that there is no actual risk of disclosure of confidential information. There is also no threat of serious and irreparable harm as a result of such a risk, nor is there evidence of any such risk.

An application for suspension of the Commission’s decision has been filed. The Court will give its final ruling on TikTok’s gatekeeper status at a later date. 

Press Release No. 28/2024 on T-1077/23 (9 February 2024)