Court Upholds TikTok and Stripchat DSA VLOP and DMA Gatekeeper Designations
The EU courts have recently reinforced the European Commission’s approach to designating large online services under both the Digital Services Act (DSA) and the Digital Markets Act (DMA). In separate proceedings concerning Stripchat and TikTok, the General Court and an Advocate General of the Court of Justice confirmed that platform designations may stand even where companies dispute the Commission’s underlying assessment.
In the Stripchat case, the General Court upheld the Commission’s designation of Technius Ltd.’s adult entertainment platform as a very large online platform (VLOP). The DSA designation threshold is 45 million average monthly active recipients in the EU. Technius had reported 31.8 million users, relying on Similarweb data that excluded certain bounced visits. The Commission concluded that this approach understated the relevant audience and calculated that Stripchat had more than 62 million average monthly active recipients.
Similarweb later revised its methodology and produced an estimate of 37.3 million users for the relevant period, below the VLOP threshold. The General Court nevertheless held that this later adjustment did not invalidate the Commission’s earlier decision. Legality had to be assessed against the facts and data available when the designation was adopted. The Court also rejected the argument that the DSA breached legal certainty by failing to prescribe a detailed calculation method, finding that the legislation gives providers sufficient direction on the meaning of “active recipients.”
The TikTok proceedings concern the DMA gatekeeper designation of ByteDance. Under the DMA, a company is presumed to be a gatekeeper where it meets specified turnover, valuation, user, and business-user thresholds. The relevant financial threshold includes annual EU turnover of at least €7.5 billion for each of the previous three financial years, or an average market capitalization or equivalent fair market value of at least €75 billion in the last financial year.
Advocate General Andrea Biondi considered whether the Commission should have opened a market investigation after ByteDance argued that TikTok was not an important gateway between businesses and end users. He stated that a market investigation is required where submissions manifestly call the statutory presumption into question, but the evidence need not amount to conclusive proof. Still, he found no error in rejecting ByteDance’s arguments based on TikTok’s lack of a broader digital ecosystem, the use of multiple social networks by users, and its scale relative to other services. Use of competing platforms does not, by itself, mean that TikTok cannot be an important gateway.
Together, the cases show that EU courts are likely to give the Commission meaningful room in applying DSA and DMA designation criteria. They also underline the importance for platforms of maintaining robust, well-documented user metrics and submitting targeted evidence where they seek to rebut statutory presumptions.
