TikTok tells Europe’s top court it isn’t Big Tech royalty

(CN) — TikTok spent Tuesday morning in Europe’s top court trying to convince judges it is still a scrappy challenger, not the kind of digital empire Brussels built its Big Tech crackdown to control.

ByteDance, TikTok’s Chinese parent company, asked the Court of Justice of the European Union to overturn its designation as a so-called “gatekeeper” under the European Union’s Digital Markets Act, a sweeping law designed to stop the world’s biggest online platforms from locking users and businesses into their ecosystems.

The company wants judges to scrap a 2023 European Commission decision that placed TikTok under the law’s strict obligations. EU regulators, meanwhile, urged the court to uphold both the designation and a 2024 lower-court ruling backing the commission, arguing TikTok has already become one of Europe’s most powerful digital gateways.

Tuesday’s hearing became the first major Digital Markets Act fight to reach Europe’s highest court, placing judges in the middle of a much bigger battle over how early governments should move before fast-growing tech platforms become too powerful to dislodge.

Opening for ByteDance, lawyer Edward Batchelor argued the General Court applied the wrong legal test when it upheld TikTok’s gatekeeper status.

“ByteDance showed not only that its market cap is overwhelmingly derived from its Asian businesses, but also they had no connection to Europe, face different competitive dynamics and operate in a distinct regulatory, linguistic and cultural environment,” Batchelor told the court.

ByteDance argued regulators treated the Digital Markets Act’s numerical thresholds almost like a one-way ticket into gatekeeper status rather than a trigger for deeper scrutiny.

Its lawyers repeatedly returned to one central point throughout the hearing: TikTok users are not trapped inside TikTok.

They argued that most users also spend time on Instagram, Facebook, Snapchat and X, allowing businesses to reach the same audiences elsewhere.

ByteDance described that behavior as “multihoming,” saying it weakens the idea that TikTok acts as an unavoidable bottleneck between businesses and consumers.

The European Commission answered that TikTok was trying to shrink itself on paper while ignoring how dominant it has already become.

“ByteDance is trying yet again to convince you that its online social network TikTok, despite its widespread use across the union, despite its extraordinary growth, is a small upstart,” European Commission lawyer Mislav Mataija told judges.

Commission lawyers said the Digital Markets Act was written specifically to catch fast-growing platforms before they harden into untouchable monopolies.

Passed in 2022 after years of frustration with Google, Apple, Meta, Amazon and Microsoft, the law gave Brussels new powers to impose sweeping restrictions on companies deemed to control critical digital gateways. Gatekeepers can be forced to open parts of their platforms to rivals, limit how they combine personal data across services and stop favoring their own products.

TikTok joined that list in September 2023. ByteDance immediately challenged the designation, arguing TikTok remained a disruptive challenger rather than a dominant platform protected by the kind of locked-in ecosystem the law was designed to target.

Last July, the European Union’s General Court rejected most of those arguments and upheld the commission’s decision, finding TikTok’s enormous user base and explosive growth met the law’s criteria.

Tuesday’s appeal quickly narrowed into a dense fight over how difficult it should be for companies to rebut the law’s presumptions.

ByteDance argued the lower court effectively forced it to prove TikTok was not dominant at all instead of simply showing enough evidence to justify a deeper market investigation.

Commission lawyers rejected that framing, saying the burden properly remains on companies trying to escape designation.

“The undertaking’s arguments are tested in order to demonstrate a high degree of plausibility that the presumptions are called into question,” Mataija said.

Judges spent much of the morning trying to pin down exactly what ByteDance was really complaining about.

At several points, Judge Irmantas Jarukaitis pushed the company’s lawyers on whether they were attacking TikTok’s gatekeeper label itself or mainly arguing the commission used the wrong process to get there.

The court also emphasized one uncomfortable reality for TikTok: Even if users regularly bounce between apps, that does not necessarily stop a platform from becoming indispensable.

Commission lawyers argued users can still become heavily dependent on TikTok for specific audiences and types of content, particularly younger users hooked on short-form video. “Lock-in can occur even when some degree of multi-homing exists,” Mataija told the court.

Tuesday’s hearing also laid bare the bigger gamble behind Europe’s attempt to tame the tech industry.

European lawmakers crafted the Digital Markets Act because traditional antitrust cases often dragged on for years while companies like Google, Meta and Apple kept growing even larger. By the time regulators finally acted, Brussels feared the damage was already done.

The new system was designed to move much faster, using preset user and financial thresholds to identify platforms regulators believe could become unavoidable digital gatekeepers.

ByteDance warned judges that the system now risks overshooting its target.\n\nIts lawyers argued Brussels is using those presumptions so aggressively that a law meant for entrenched tech empires is also swallowing up fast-growing challengers still battling for market share.

The commission answered that TikTok’s explosive growth is exactly the point. Regulators argued the law was written to stop platforms from becoming untouchable before it is too late to rein them in.

Judges will now begin deliberations in one of the first major tests of how far Europe’s new digital rulebook can reach. Advocate General Andrea Biondi is scheduled to deliver a nonbinding opinion on Oct. 15 before the court issues its final judgment at a later date.

Courthouse News reporter Eunseo Hong is based in the Netherlands.