On Thursday 16 November, the Chinese video-sharing platform TikTok announced that it would be challenging its designation as a gatekeeper under the Digital Markets Act (DMA) legislation (see EUROPE 13275/19) before the European courts.
TikTok believes that it does not meet the DMA criteria for its market position. According to the DMA, to be designated as such, gatekeepers must occupy an “entrenched and durable” position in the market. However, TikTok considers itself “far from entrenched” and defines itself as “a challenger, not an incumbent operator”.
In addition, the company believes that it does not meet the revenue thresholds set to fall under the DMA, but that its designation is based on the global market capitalisation of its parent company, Bytedance. Under the DMA, these thresholds are set at €7.5 billion in sales or €75 billion in market capitalisation at least.
The Chinese company also believes that it “did not have the time to prove itself” with regard to the evaluation of the data submitted to the Commission prior to its designation as a gatekeeper on 6 September (see EUROPE 13244/3).
“Other platforms in a similar situation to TikTok have benefited from a market investigation by the European Commission. No market investigation has been carried out into our designation, while the numerous pieces of evidence we provided in our rebuttal have not been accepted”, the company argued.
In addition, the company intends to argue that it launched its ‘TikTok for Business’ service in 2021 within the EU and that businesses operating in Europe are not ‘dependent’ on the platform, as the DMA requires for a business to switch to the gatekeeper side.
The day before, on Wednesday 15 November, the Meta group announced that it too would be challenging the designation of its ‘Messenger’ and ‘Marketplace’ services as gatekeepers. For the US company, Messenger cannot be considered as a separate service from Facebook, and Marketplace is a peer-to-peer service in which business users cannot reach end-users.
“This action seeks to clarify specific points of law concerning the designations of Messenger and Marketplace in the context of the DMA. It does not alter or diminish our firm commitment to comply with the DMA and we will continue to work constructively with the European Commission to prepare for compliance”, said a Meta spokesperson. (Original version in French by Thomas Mangin)