On February 9, 2024, the General Court[1] dismissed an application from ByteDance Ltd (“ByteDance”), the parent company of social media platform TikTok, to suspend the Commission decision[2] designating ByteDance as a “gatekeeper” under the Digital Markets Act (“DMA”).[3]  ByteDance had argued that compliance with the restrictions on combining data between services (Article 5(2) DMA) and the obligation to provide the Commission with an “independently audited description” of TikTok’s profiling techniques (Article 15 DMA), would lead to serious and irreparable harm.[4]  The General Court found that ByteDance had failed to establish such harm to the requisite standard.  While the General Court order offers little insight into the substantive debate on the scope of the DMA, it showcases the hurdles gatekeepers have to overcome to seek interim relief from the DMA before the European Courts.


The Designation Decision under the DMA.  On September 5, 2023, the Commission designated ByteDance as a gatekeeper and informed the platform provider that TikTok qualifies as a core platform service and would have to comply with the DMA by March 6, 2024.

Compliance with the DMA requires gatekeepers to, among other obligations, abide by the behavioral rules set out in Articles 5 and 6 of the DMA.  These include a prohibition to combine or cross-use personal data from platform services with personal data from other services, without end-user consent (Article 5(2) DMA).  Gatekeepers are also obliged, within six months after their designation, to submit to the Commission audited descriptions of profiling techniques that the Commission transmits to the European Data Protection Board.  Gatekeepers must also publish a non-confidential version of this description (Articles 15(1) and (3) DMA).

ByteDance’s applications before the EU Courts.  ByteDance applied for annulment of the Designation Decision on November 16, 2023.[5]  Four days later, on November 20, 2023, ByteDance lodged an application for interim measures, seeking the suspension of the effects of the Designation Decision, arguing that complying with the obligations set out in Articles 5, 6, and 15 of the DMA, would cause ByteDance serious and irreparable harm.

ByteDance’s arguments

To support its application for interim relief, ByteDance claimed that adhering to the obligations set out in Articles 5, 6, and 15 of the DMA would cause it serious and irreparable harm, by preventing it from relying on TikTok users’ data and by requiring it to disclose confidential strategic information, thereby significantly affecting its market position:

  • Data combination and processing.  ByteDance argued that, in an industry heavily reliant on personal data, the DMA’s restrictions on the use of certain user data prevents ByteDance from utilizing user data to innovate and provide personalized products and services.[6]  Such restriction would hinder its ability to leverage user data effectively and may severely impact TikTok’s ability to rely on existing insights regarding uses of its platform, which constitutes “its only launchpad for successful entry into the EU market.”[7]
  • Transparency on end-user profiling techniques.  ByteDance claimed that compliance with the obligation to provide the Commission with an independently audited description of the techniques applied for consumer profiling entails the disclosure of highly strategic and confidential information to the Commission.  It argued that such disclosure could not only compromise its competitive position, but also provide unfair advantages to competitors.[8] Additionally, the required disclosure of TikTok’s trust and safety models makes the platform more susceptible to abuse by third parties and may therefore negatively affect user confidence.[9]

The Commission disputed these arguments, taking issue with ByteDance’s interpretation and alleged consequences of enforcing Articles 5, 6, and 15 of the DMA.

The General Court’s Order

The General Court found that ByteDance failed throughout its application to demonstrate urgency.

Data combination and processing.  The General Court criticized ByteDance for not having shown the precise circumstances in which the application of Article 5(2) DMA would lead to serious and irreparable harm for its specific case.  The General Court pointed out that ByteDance may continue to cross-use data under the DMA where they have obtained end-user consent, and that ByteDance’s claims are speculative when they assume that TikTok users would not consent to such use.[10][OWC1]   Additionally, there is nothing that would prevent ByteDance from taking “appropriate measures to inform TikTok’s end users of the possible advantages that they might draw from the cross-use.”[11]  The General Court also held that ByteDance could have submitted an application for suspension of the obligations imposed by Article 5 in accordance with Article 9(1) DMA.[12]  Not only did ByteDance not apply for suspension under Article 9(1), it also failed to assert the seriousness or irreversibility of its financial harm as it “provide[d] practically no figures” and only generically refer[ed] to the fact that the “market [would] tip.”[13]

Transparency on end-user profiling techniques.  In siding with the Commission, the General Court held that any submissions on end-user profiling techniques to the Commission under Article 15(1) DMA would be protected by confidentiality obligations applicable to EU institutions.  Additionally, Article 15(3) DMA allows gatekeepers to take into account their business secrets when disclosing a non-confidential overview of their profiling techniques.[14]  Furthermore, the General Court criticized ByteDance for relying “on abstract references to confidential information without specifying the nature, content, value and relevance thereof from the point of view of competition,” holding that such abstract statements do not allow the judge hearing the application for interim measures to assess the serious and irreparable nature of the alleged harm.[15]

Without assessing whether ByteDance’s application for annulment of the Designation Decision had substantive merit, the General Court rejected the application for interim measures given the applicant’s failure to establish the urgency of the action.

Conclusion and takeaways

While the order neither preempts nor gives any insight into the substantive debate about ByteDance’s gatekeeper designation, the first ruling from the European Courts on the DMA sets the bar for future gatekeeper applications for interim relief under the Commission’s new digital competition law.  Speculative and insufficiently quantified damage arising out of the enforcement of the DMA will not pass muster.  Instead, gatekeepers must put forward a convincing and coherent display of how specific obligations under the DMA will lead to serious and irreversible harm.  Furthermore, a failure to apply for a suspension from the obligations under the DMA prior to seeking interim relief, will be taken into account by the General Court.

In the meantime, ByteDance has notified the Commission that its advertising service has also surpassed the quantitative thresholds under Article 3(2) of the DMA, though the company maintains that it acts as a challenger on the market, facing competition by large incumbents, and should therefore not be designated as gatekeeper.[16] 

[1] Orders on interim measures are taken by the President of the General Court and not by the chamber to which the main proceedings are assigned.  References in this article to the “General Court” refer therefore to the “President of the General Court”.

[2] ByteDance – Online social networking services (Case DMA.100040), Commission decision of September 5, 2023 (the “Designation Decision”).

[3] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act), OJ L 265/1.

[4] ByteDance v. Commission (Case T-1077/23) EU:T:2024:94.

[5] These provisions allow to suspend the effect of a contested Decision until the conclusion of the main proceedings. 

[6] See supra fn 2, paras. 39 and 40.

[7] Ibid., para. 41.

[8] Ibid., para. 17 et seq.

[9] Ibid, para. 19.

[10] Ibid., para. 47.

[11] Ibid, para.47.

[12] Ibid, para. 57.  Under Article 9(1) DMA, the Commission may disapply certain obligations under the DMA where a gatekeeper can prove that, due to exceptional circumstances beyond the gatekeeper’s control, the economic viability of its operations would be jeopardized.  

[13] Ibid, paras. 53–54.

[14] Ibid., paras. 44 et seq.

[15] Ibid., para. 33.

[16] Lewis Crofts, “TikTok to argue against EU designating ad platform as ‘gatekeeper’ service,” MLex, March 2, 2024, available here.