62023TJ1077_RES
Case T‑1077/23
Bytedance Ltd
v
European Commission
Judgment of the General Court (Eighth Chamber, Extended Composition) of 17 July 2024
(Digital services – Regulation (EU) 2022/1925 – Designation of gatekeepers – Online social networking service – Article 3(1), (2) and (5) of Regulation 2022/1925 – Requirements – Presumptions – Rebuttal of the presumptions – Rights of the defence – Equal treatment)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Verification by the Commission – Presumptions – Rebuttal by the undertaking concerned – Need to submit arguments and evidence directly related to the presumptions at issue – Need to submit arguments and evidence manifestly calling into question those presumptions
(European Parliament and Council Regulation 2022/1925, Art. 3(1), (2) and (5))
(see paragraphs 39-56, 59-72, 284-285)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Significant impact on the internal market – Presumption – Conditions – Annual Union turnover of the undertaking exceeding the prescribed threshold in each of the last three financial years – Global market value of the undertaking exceeding the prescribed threshold in the last financial year – Alternative conditions – Condition relating to global market value satisfied by the undertaking – Rebuttal of the presumption by that undertaking – Arguments based on the low Union turnover – Whether permissible
(European Parliament and Council Regulation 2022/1925, Art. 3(1)(a), (2)(a) and (5))
(see paragraphs 80-92)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Significant impact on the internal market – Presumption – Conditions – Global market value exceeding the prescribed threshold in the last financial year – Geographical origin of the global market value – Irrelevant
(European Parliament and Council Regulation 2022/1925, Art. 3(1)(a) and (2)(a))
(see paragraphs 102-109)
Action for annulment – Pleas in law – Error of law – Error with no decisive influence on the result – Unfounded plea
(Art. 263 TFEU)
(see paragraphs 111-118)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Provision of a core platform service constituting an important gateway – Presumption – Conditions – Number of end users and business users of the service exceeding the prescribed thresholds – Rebuttal of the presumption by that undertaking – Undertaking with no digital ecosystem – Element insufficient so as manifestly to call into question the presumption
(European Parliament and Council Regulation 2022/1925, Art. 3(1)(b), (2)(b) and (5))
(see paragraphs 128-134, 146-161)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Provision of a core platform service constituting an important gateway – Presumption – Conditions – Number of end users and business users of the service exceeding the prescribed thresholds – Rebuttal of the presumption by that undertaking – Burden of proof lying on that undertaking
(European Parliament and Council Regulation 2022/1925, Art. 3(1)(b), (2)(b) and (5))
(see paragraphs 135-144)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Provision of a core platform service constituting an important gateway – Presumption – Conditions – Number of end users and business users of the service exceeding the prescribed thresholds – Rebuttal of the presumption by that undertaking – Existence of a certain degree of multi-homing by end users and business users – Arguments not sufficiently substantiated so as manifestly to call into question the presumption
(European Parliament and Council Regulation 2022/1925, Art. 3(1)(b), (2)(b) and (5))
(see paragraphs 171-214)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Provision of a core platform service constituting an important gateway – Presumption – Conditions – Number of end users and business users of the service exceeding the prescribed thresholds – Rebuttal of the presumption by that undertaking – Scale of the service smaller than that of other platforms and large number of competitors – Arguments not sufficiently substantiated so as manifestly to call into question the presumption
(European Parliament and Council Regulation 2022/1925, Art. 3(1)(b), (2)(b) and (5))
(see paragraphs 222-230, 238-245)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Verification by the Commission – Presumptions – Rebuttal by the undertaking concerned – Obligation to submit the relevant arguments and evidence during the administrative procedure
(European Parliament and Council Regulation 2022/1925, Art. 3(1), (2) and (5))
(see paragraphs 231-237)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Provision of a core platform service constituting an important gateway – Presumption – Conditions – Number of end users and business users of the service exceeding the prescribed thresholds – Rebuttal of the presumption by that undertaking – Minimal advertising revenue and low level of engagement of business users, and lower than those of certain other platforms – Arguments not sufficiently substantiated so as manifestly to call into question the presumption
(European Parliament and Council Regulation 2022/1925, Art. 3(1)(b), (2)(b) and (5))
(see paragraphs 255-282)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Current entrenched and durable position, or in the near future – Criterion – Limited contestability of the position of the undertaking providing the core platform service – Presumption – Rebuttal by the undertaking concerned – Assessment of the contestability of the position of the undertaking concerned – Ability of all undertakings to challenge gatekeepers on the merits of their products and services
(European Parliament and Council Regulation 2022/1925, Art. 3(1)(c), (2)(c) and (5))
(see paragraphs 293-320)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Verification by the Commission – Observance of the right to be heard of the undertaking concerned – Infringement – Annulment of the Commission’s decision – Condition – Undertaking concerned better able to ensure its defence in the absence of procedural irregularity – Condition not met
(Charter of Fundamental Rights of the European Union, Art. 41(2); European Parliament and Council Regulation 2022/1925, Arts 3 and 34)
(see paragraphs 340-370)
Regulating digital markets – Contestability and fairness of markets in the digital sector – Gatekeeper – Criteria for designation – Verification by the Commission – Respect for the principle of equal treatment – No comparable situations
(Charter of Fundamental Rights of the European Union, Arts 20 and 21; European Parliament and Council Regulation 2022/1925, Art. 3)
(see paragraphs 374-379)
Résumé
Interpreting for the first time the Digital Markets Regulation (
1
) (‘the DMA’), the General Court dismisses the action for annulment brought by Bytedance Ltd against the decision of the European Commission (
2
) designating that undertaking and the companies which it controls directly or indirectly (together, ‘ByteDance’) as a gatekeeper within the meaning of that regulation.
Since certain digital services, called ‘core platform services’ (‘CPS’ or ‘CPSs’), often have characteristics which, combined with unfair practices on the part of the undertakings providing those services, can have the effect of substantially undermining the contestability of the CPSs, as well as impacting the fairness of the commercial relationship between undertakings providing such services and their business users and end users, the EU legislature decided to adopt the DMA.
Therefore, the DMA seeks to contribute to the proper functioning of the internal market by laying down rules to ensure the contestability and fairness of markets in the digital sector in general, and for business users and end users of CPSs provided by undertakings designated as ‘gatekeepers’ in particular. To that end, the DMA provides for a targeted set of obligations that undertakings which have been designated, by the Commission, as gatekeepers must comply with in respect of each of the CPSs listed in the designation decision.
In accordance with Article 3(1) of the DMA, the Commission designates an undertaking as a gatekeeper where it meets the following three cumulative requirements:
(a) it has a significant impact on the internal market;
(b) it provides a CPS which is an important gateway for business users to reach end users (‘important gateway’); and
(c) it enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future.
Under Article 3(2) of the DMA, an undertaking is presumed to satisfy those requirements where it meets certain quantitative thresholds, based in particular on the Union turnover of the undertaking concerned or its global market value, the number of end users and business users of the CPS concerned which are established or located in the European Union, and the number of years during which the latter threshold relating to the number of users has been met.
Under the first subparagraph of Article 3(5) of the DMA, the undertaking concerned may present, with its notification under the first subparagraph of Article 3(3) of the DMA, sufficiently substantiated arguments to demonstrate that, exceptionally, although it meets all the thresholds in Article 3(2) of the DMA, due to the circumstances in which the relevant CPS operates, it does not satisfy the requirements listed in paragraph 1 of that article. Where the undertaking does present such sufficiently substantiated arguments manifestly calling into question the presumptions laid down in Article 3(2) of the DMA, the Commission may open a market investigation pursuant to Article 17(3) of the DMA.
Bytedance Ltd, which was established in China in 2012 and incorporated under the law of the Cayman Islands, operates, together with the companies which it controls directly or indirectly, inter alia, the digital platform TikTok. That digital platform which was launched in the European Union, in its current version, in August 2018, allows its users to search for, view and distribute videos, as well as to interact, communicate and share content with other users.
Having received a notification from Bytedance Ltd pursuant to the first subparagraph of Article 3(3) of the DMA, the Commission considered, first, that TikTok was an online social networking service within the meaning of the DMA and, consequently, a CPS. Secondly, the Commission found that ByteDance met the thresholds laid down in Article 3(2) of the DMA, as regards TikTok, so that it could be presumed that the conditions laid down in Article 3(1) of the DMA, relating to its designation as a gatekeeper, were satisfied. Thirdly, the Commission considered that the arguments put forward by Bytedance Ltd to rebut the presumptions laid down in Article 3(2) of the DMA were not sufficiently substantiated so as manifestly to call them into question. Accordingly, the Commission designated ByteDance as a gatekeeper, without opening a market investigation, and considered that the online social networking service TikTok was an important gateway within the meaning of the DMA. (
3
)
Bytedance Ltd brought an action for the annulment of that decision before the Court. At the request of Bytedance Ltd, the Court decided to adjudicate on the action under the expedited procedure.
Findings of the Court
In support of its action, the applicant raises three pleas in law alleging (i) infringement of Article 3(1) and (5) of the DMA, (ii) infringement of the rights of the defence and (iii) infringement of the principle of equal treatment.
The plea in law alleging infringement of Article 3(1) and (5) of the DMA
As a preliminary point, the Court notes that the applicant does not dispute that TikTok is an online social networking service within the meaning of the DMA. It does not dispute either that the thresholds laid down in Article 3(2)(a) to (c) of the DMA were met and that, consequently, ByteDance was presumed to satisfy the respective requirements of Article 3(1) of the DMA for the purpose of its designation as a gatekeeper.
By contrast, the applicant takes the view that the Commission erred in finding that the arguments it had presented, in accordance with the first subparagraph of Article 3(5) of the DMA, were not sufficiently substantiated so as manifestly to call into question the presumptions laid down in Article 3(2) of the DMA as regards TikTok.
A. The legal standard applied by the Commission when assessing the arguments presented to rebut the presumptions laid down in Article 3(2) of the DMA
First of all, the Court dismisses the complaints that the Commission applied the wrong legal standard in its assessment of the arguments and evidence submitted by the applicant in order to rebut the presumptions laid down in Article 3(2) of the DMA
In that context, the Court notes, first, that while Article 3(5) of the DMA allows the undertaking concerned to submit, in order to rebut the presumptions laid down in Article 3(2) of the DMA, arguments and evidence, whether or not they are expressed in figures, those arguments and that evidence must nevertheless relate directly to one or more of those presumptions, which take the form of quantitative thresholds. In the present case, the Commission was entitled to reject certain of the applicant’s arguments consisting, inter alia, of general assertions concerning the objectives pursued by the DMA and the subject matter and effectiveness of Article 3(5) of the DMA, since they were not intended to rebut concretely and specifically one of the three presumptions laid down in Article 3(2) of the DMA and, therefore, were not directly related to them.
Second, the Court states that the standard of proof required to call into question those presumptions derives directly from Article 3(5) of the DMA, which requires that the undertaking concerned – on which the burden of proof lies – submit sufficiently substantiated arguments, manifestly calling into question those presumptions. It follows that the arguments presented by that undertaking must be capable of showing, with a high degree of plausibility, that the presumptions laid down in Article 3(2) of the DMA are called into question. The Court adds that, in the present case, the Commission had asserted that it had applied the standard of proof set out in Article 3(5) of the DMA and that there was nothing in its analysis to suggest that the standard of proof which it had actually applied was higher than that set out in that provision.
B. The presumption that ByteDance had a significant impact on the internal market
Next, in the light of that information, the Court examines the applicant’s claims that the Commission infringed Article 3(1)(a) and (5) of the DMA by rejecting its arguments seeking to show that ByteDance did not have a significant impact on the internal market. The applicant claimed, in essence, that ByteDance’s impact on the internal market was not significant, as demonstrated, inter alia, by the fact that its Union turnover was low and that ByteDance’s global market value was mainly attributable to its activities in China, with the result that that value is not representative of its impact on the internal market.
In that context, the Commission had, inter alia, rejected as irrelevant the argument that ByteDance’s revenue in the European Union was below the Union turnover threshold laid down in Article 3(2)(a) of the DMA.
On that point, the Court recalls that it can be presumed from Article 3(2)(a) of the DMA that an undertaking has a significant impact on the internal market, within the meaning of paragraph 1(a) of that article, where the undertaking provides the CPS in question in at least three Member States and either its annual Union turnover is equal to or greater than EUR 7.5 billion in each of the last three financial years, or its average market capitalisation or its equivalent fair market value amounts to at least EUR 75 billion in the last financial year.
The Court observes, moreover, that it was not disputed that ByteDance did not meet the Union turnover threshold. On the other hand, it was accepted that ByteDance met the global market value threshold and that, as a result, it was deemed to have a significant impact on the internal market.
As regards the relationship between the two thresholds referred to above, the Court states that they reflect similar, but distinct, situations. While a high Union turnover tends to show that the undertaking in question already has the ability to monetise its users in the internal market, a high global market capitalisation or fair market value rather tends to indicate that that undertaking has the potential to monetise its users in the internal market in the near future. In addition, the Union turnover of the undertaking in question was specifically chosen by the EU legislature as an indicator of its impact on the internal market.
Accordingly, it cannot be ruled out that the undertaking concerned may demonstrate, on the basis of a number of sufficiently substantiated arguments, including its low Union turnover, that, despite its very significant global market value, it has only a limited presence on the internal market, so that that market value does not reflect a potential to monetise its users in the Union in the near future and that, therefore, it does not have a significant impact on the internal market within the meaning of Article 3(1)(a) of the DMA.
In the light of the foregoing, the Court finds that the Commission erred in rejecting as irrelevant, for the purposes of calling into question the presumption relating to ByteDance’s significant impact on the internal market, the applicant’s argument relating to ByteDance’s low Union turnover.
That being so, in accordance with the case-law, that error leads to the annulment of the contested decision only if it could have had a decisive effect, in the particular circumstances of the present case, on the Commission’s rejection of the arguments presented by the applicant to rebut the presumption laid down in Article 3(2)(a) of the DMA.
However, that is not so since all the other elements taken into account by the Commission in order to conclude that ByteDance had significant potential to monetise its users in the Union in the near future remain valid. In support of that conclusion, the Commission also recalled that ByteDance’s Union turnover, although it did not reach the threshold laid down in Article 3(2)(a) of the DMA, had nonetheless not ceased increasing, that ByteDance’s fair market value was significantly above the EUR 75-billion threshold and that the number of TikTok end users and business users in the Union had continued to increase in the last three financial years, far exceeding the thresholds laid down in Article 3(2)(b) of the DMA.
C. The presumption that TikTok is an important gateway
The Court also rejects the applicant’s complaints that the Commission infringed Article 3(1)(b) and (5) of the DMA by classifying TikTok as an important gateway pursuant to the presumption laid down in Article 3(2)(b) of the DMA, despite the arguments to the contrary put forward by the applicant.
In accordance with Article 3(2)(b) of the DMA, an undertaking is deemed to provide a CPS constituting an important gateway if it provides a CPS which, in the last financial year, has had at least 45 million monthly active end users established or located in the Union and at least 10000 yearly active business users established in the Union.
a. The alleged lack of an ecosystem and of significant network effects
In order to challenge TikTok’s classification as an important gateway pursuant to the presumption laid down in Article 3(2)(b) of the DMA, the applicant claimed, in the first place, that, unlike other undertakings operating in the digital sector, ByteDance does not have an ecosystem and does not benefit from significant network effects.
First of all, the Court states that a digital platform ecosystem may consist of one or more CPSs and other services connected to them, for example by means of technological links or interoperability; this is liable to exacerbate entry barriers for competitors of those undertakings and increase the cost of switching providers for end users, making it more difficult for existing or new market operators to compete with those undertakings or contest their position.
Next, the Court finds that the applicant has not substantiated its argument that ByteDance did not have an ecosystem of which TikTok formed part.
Lastly, according to the Court, even if ByteDance does not have an ecosystem, the Commission’s conclusion regarding TikTok’s classification as an important gateway remains valid, since it is apparent from the contested decision that, since the launch of its current version, in 2018, in the European Union, TikTok has succeeded, in a short time, in attracting a very large number of end users and business users, thereby far exceeding the thresholds laid down in that regard in Article 3(2)(b) of the DMA and reaching half of the size of Facebook and of Instagram.
Moreover, contrary to the applicant’s claims, there is nothing in the DMA to suggest that a CPS can produce significant network effects only if it is part of an ecosystem. Similarly, the applicant did not put forward any independent argument which may suggest that TikTok lacks significant network effects.
b. The existence of multi-homing and the alleged absence of lock-in effects
In the second place, the Court upholds the Commission’s conclusion that the existence of a certain degree of multi-homing (
4
) by end users and business users in relation to TikTok and other online social networks was insufficient so as manifestly to call into question the presumption laid down in Article 3(2)(b) of the DMA.
In this respect, the Court notes that, while the existence or absence of multi-homing and lock-in effects can constitute, depending on the case, relevant elements to assess whether that presumption may be manifestly called into question, it is necessary to take into account the specific and concrete characteristics of that multi-homing and of the lock-in effects as they arise in the circumstances in which the relevant CPS operates.
Since the prevalence of multi-homing among users of online social networks is illustrated by the data produced by the applicant itself, the Court finds that, in view of the characteristics of the CPS concerned, the mere existence of multi-homing, even to a significant degree, is not in itself sufficient so as manifestly to call into question the presumption laid down in Article 3(2)(b) of the DMA in the present case.
What is more, the arguments and evidence submitted by the applicant – on which the burden of proof lies – during the administrative procedure concerned only the existence of multi-homing in general, and not the intensity of use of the various online social networking platforms, bearing in mind that TikTok enjoyed a higher engagement rate than other social networks since end users, in particular young people, spend more time on TikTok than on other social networks.
As regards the applicant’s arguments based on the fact that approximately 82% and 77% of TikTok end users also use Instagram and Facebook, respectively, while only 38% of Facebook end users and 48% of Instagram end users also use TikTok, the Court finds that the applicant has not, in any event, demonstrated that the asymmetric nature of multi-homing as practised by TikTok users, on the one hand, and Facebook and Instagram users, on the other, was due not to the economic and historical context in which online social networks operate in the Union, but to the absence of network effects and lock-in effects on TikTok.
c. The smaller scale of TikTok compared with other platforms and the large number of competitors
In the third place, the Court finds that the Commission was correct to consider that the arguments presented by the applicant relating to TikTok’s small scale compared to that of certain other online social networking platforms, and to the existence of a large number of competitors, were also not sufficiently substantiated so as manifestly to call into question the presumption laid down in Article 3(2)(b) of the DMA.
Among the elements which the Commission may take into account in its assessment of the arguments seeking to rebut the presumption laid down in Article 3(2)(b) of the DMA features, according to recital 23 thereof, the ‘importance of the [CPS of the undertaking concerned] considering the overall scale of activities of the respective [CPS]’. However, that recital does not specify the parameters on the basis of which the importance and scale of the CPS at issue must be measured.
In that context, the applicant submitted that TikTok is not an important gateway, within the meaning of Article 3(1)(b) of the DMA, on the ground that TikTok is smaller in size than other well-established platforms, such as Facebook and Instagram, inter alia, in terms of number of end users.
However, since the applicant put forward arguments and figures which it had not submitted during the administrative procedure, in order to demonstrate TikTok’s alleged small scale, the Court declares them inadmissible.
It rejects those new arguments as unfounded and, in that context, confirms inter alia that TikTok’s size in terms of number of end users cannot be assessed in a static manner, but must take account of the rapid and significant growth in the number of end users in the Union, which has reached approximately half the size of Facebook and of Instagram in a few years.
d. Advertising revenue and the level of engagement of business users registered on TikTok
By contrast, as regards the applicant’s arguments alleging that ByteDance’s advertising revenue, its average revenue per user or the level of engagement of advertisers and business users registered on TikTok are minimal and lower than those of certain other platforms, the Court finds, in the fourth place, that the Commission erred in rejecting those arguments as irrelevant for the purpose of rebutting the presumption laid down in Article 3(2)(b) of the DMA.
In that regard, the Court points out, first, that although the Commission classified TikTok as an online social networking service and not as an online advertising service within the meaning of the DMA, the fact remains that TikTok is a single platform, on which users interact primarily by sharing and viewing videos, while advertisers pay for advertisements to appear, generally between videos viewed by those users.
Second, it cannot be denied that the advertising revenue or the average revenue per user generated by TikTok could, in principle, constitute an indication among others of the importance which that platform represents for its business users in order to reach end users, in so far as advertising is one of the means commonly used by those business users to reach their customers.
That being so, since the Commission had, in any event, also established that the applicant’s arguments and evidence relating to online advertising were not sufficiently substantiated so as manifestly to call into question the presumption laid down in Article 3(2)(b) of the DMA, the Court finds that the error committed by the Commission has no bearing on the lawfulness of the contested decision. On that point, the Court notes in particular that the Commission was right to find that the arguments and evidence put forward by the applicant were not sufficiently representative of all TikTok business users.
D. The presumption that ByteDance has an entrenched and durable position
Lastly, the Court rejects the applicant’s complaints that the Commission infringed Article 3(1)(c) and (5) of the DMA by rejecting its arguments seeking to challenge the finding that, in the light of the presumption laid down in Article 3(2)(c) of the DMA, TikTok enjoys an entrenched and durable position in its operations. The applicant claimed, in essence, that it was a ‘challenger’ on the market and that its market position had been successfully contested by competitors such as Meta and Alphabet, which had launched new services, such as Reels and Shorts, which, by imitating the main features of TikTok, had enjoyed rapid growth.
After noting, first, that the concept of an ‘entrenched and durable’ position within the meaning of Article 3(1)(c) of the DMA is intended to capture the low contestability of the position of the undertaking in question and the stability over time of that position and, second, that that concept does not necessarily overlap with that of a ‘dominant position’ within the meaning of Article 102 TFEU, the Court observes that an undertaking’s entrenched and durable position in its operations does not preclude the existence of a certain degree of contestability.
In response to the applicant’s arguments based on the fact that other gatekeepers in the same CPS category, namely Meta and Alphabet, have contested ByteDance’s position, the Court also finds that the purpose of the DMA is to ensure the contestability of the position of gatekeepers not only by other gatekeepers but also, or even especially, by other operators which are not gatekeepers for a given CPS. It follows that mere references to the activities of Meta and Alphabet do not make it possible to conclude that ByteDance’s position is not entrenched and durable within the meaning of the DMA.
Moreover, there is nothing to prevent an undertaking such as ByteDance, which in 2018 was a challenger seeking to contest the position of gatekeepers, from becoming a gatekeeper itself within a few years.
The plea in law alleging infringement of the rights of the defence
In support of its action, the applicant also submits that the Commission infringed Article 41 of the Charter of Fundamental Rights of the European Union on the ground that, in the contested decision, it relied on matters of fact and law in relation to which the applicant had not had the opportunity to submit its observations during the administrative procedure.
In that regard, the Court observes that Article 41 of the Charter of Fundamental Rights guarantees to every person the possibility of making known, in a useful and effective manner, their point of view during the administrative procedure and before the adoption of any decision likely to affect their interests adversely.
In the light of those clarifications, the Court finds that, despite the numerous exchanges between the applicant and the Commission prior to the adoption of the contested decision, the applicant did not have the opportunity to submit its observations, during the administrative procedure, on certain evidence relied on against it by the Commission.
However, according to settled case-law, an infringement of the right to be heard does not automatically imply the annulment of the contested act. It is also necessary for the applicant to show that it cannot be entirely ruled out that the Commission’s decision would have been different in the absence of the procedural irregularity in question, since that party would have been better able to defend itself had there been no irregularity. The applicant having failed to show that this was so in the present case, the Court dismisses the applicant’s plea alleging infringement of its rights of defence.
The plea in law alleging infringement of the principle of equal treatment
According to the applicant, the Commission also infringed the principle of equal treatment by rejecting, in the contested decision, certain of its arguments, whereas, in other decisions, the Commission had accepted that kind of argument.
On that point, the Court recalls that the Commission is required to carry out an individual appraisal of the circumstances of each case, without being bound by previous decisions concerning other undertakings or other CPSs and that, in any event, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.
Since the recitals of the Commission’s decisions cited by the applicant in its application concern other CPS categories and not online social networking services and the applicant does not explain why the circumstances in which those other CPS categories operate are comparable to those in which an online social networking service such as TikTok operates, the Court dismisses as unfounded the plea alleging infringement of the principle of equal treatment.
In the light of all of the foregoing, the Court dismisses the action in its entirety.
(
1
)	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 2022 L 265, p. 1).
(
2
)	Commission Decision C(2023) 6102 final of 5 September 2023 designating ByteDance as a gatekeeper in accordance with Article 3 of the DMA.
(
3
)	Decision of 5 September 2023. See footnote 2.
(
4
)	In the context of digital services in general and online platforms in particular, the concept of ‘multi-homing’ describes the situation in which users use several competing digital services in parallel; in the present case, those services are online social networking services.