An adviser to the European Union’s highest court has recommended that ByteDance lose its fight against the European Commission’s decision to treat TikTok as a “gatekeeper” under the Digital Markets Act (DMA). The recommendation is an opinion, not a ruling. It does not bind the Court of Justice, whose judges have now started their deliberations.
In a press release on Thursday, 15 October 2026, the Court of Justice of the European Union summed up the opinion in its headline: “Advocate General Biondi: the Court should dismiss the action brought by Bytedance (TikTok) against the decision of the Commission designating it as a gatekeeper under the Digital Markets Act.”
The court described the case, C-627/24 P Bytedance v Commission, as “the first Digital Markets Act case to reach the Court of Justice.”
How the case got here
The DMA aims to keep digital markets “fair and contestable,” according to the court’s release. It places obligations on companies designated as gatekeepers for their “core platform services.” A company that meets the law’s numerical thresholds is presumed to be a gatekeeper, but it can submit arguments and evidence to challenge that presumption.
In September 2023, the Commission designated ByteDance as a gatekeeper in respect of TikTok, which it classified as an online social networking service, the release says. ByteDance had argued that it should not be designated even though it met the thresholds. The Commission decided that those arguments did not do enough to challenge the presumption, and it made its decision without opening a market investigation.
ByteDance took the case to the EU’s General Court, which dismissed it. Reuters reported that the lower court rejected TikTok’s challenge in 2024. ByteDance then appealed to the Court of Justice. At the court’s invitation, Advocate General Andrea Biondi looked at particular parts of that appeal.
What the Advocate General said
When the Commission must investigate. Biondi considers that the Commission has no discretion over whether to open a market investigation when a company presents arguments that “manifestly call the presumption in question,” according to the release. In that situation an investigation is required, unless it is clear that the company does not meet the qualitative requirements to be a gatekeeper. But where the arguments are not sufficiently substantiated, the Commission may reject them without an investigation.
The standard of proof. Merely casting doubt on the presumption is not enough, Biondi argues. A company must put forward “sufficiently convincing arguments that seriously challenge those presumptions,” though it does not have to prove conclusively at this early stage that it is not a gatekeeper. He considers that the General Court applied the correct standard.
TikTok as a “gateway”. ByteDance had also disputed the finding that TikTok is an important gateway for businesses to reach users. Its arguments included the absence of a wider ecosystem, the fact that users use several competing services, and TikTok’s size compared with other platforms. Biondi found no error of law in the General Court’s rejection of those arguments. “In particular, the fact that users also use other social networks does not, in itself, show that TikTok is not an important gateway,” the release says.
The right to be heard. Here Biondi partly disagreed with the lower court. He said ByteDance was entitled to have its arguments examined carefully and impartially, but that the Commission did not have to give it another chance to comment on its provisional assessment before deciding. The General Court was therefore wrong to find that ByteDance’s right to be heard had been infringed, he said, although it was right to dismiss the claim.
He proposes that the Court of Justice dismiss the parts of the appeal he examined, “substituting different reasons for the General Court’s reasoning on the right to be heard.”
Why it matters, and what it doesn’t settle
The court’s own note is clear: “The Advocate General’s Opinion is not binding on the Court of Justice.” Judgment “will be given at a later date.”
Reuters reported that the judges are expected to rule in the coming months and that they follow such non-binding opinions in around four out of five cases. That makes the opinion a strong signal, but not a result.
The stakes are significant. Under the DMA, breaches can bring fines of up to 10 per cent of a company’s annual global turnover, Reuters reported. Other designated gatekeepers include Alphabet’s Google, Meta, Apple, Amazon, Microsoft and Booking.com, according to Reuters, and Meta is also challenging the gatekeeper designation for its Messenger and Marketplace services.
Because this is the first DMA case at the Court of Justice, the eventual judgment is likely to be read closely by every company on that list. Reuters described the case as being watched for clues on whether Europe’s courts will reinforce or limit regulators’ efforts. TikTok did not immediately respond to a Reuters request for comment.
What this means
- A setback, not a defeat, for TikTok. The Advocate General backed the Commission, but the judges have yet to rule.
- Clearer rules for challengers. If the court agrees, companies will need “sufficiently convincing” evidence to escape the gatekeeper presumption.
- Wider precedent. As the first DMA case at the top court, the ruling could shape challenges by other gatekeepers, including Meta.
Sources
- Court of Justice of the European Union, Press release No 151/26, Opinion of Advocate General Biondi in Case C-627/24 P Bytedance v Commission, 15 October 2026. https://curia.europa.eu/site/upload/docs/application/pdf/2026-10/cp260151en.pdf
- Reuters via CNA, “Setback for TikTok as EU court adviser backs gatekeeper label”, 15 October 2026. https://www.channelnewsasia.com/business/setback-tiktok-eu-court-adviser-backs-gatekeeper-label-6461776
