Official Journal of the European Union

EN

C series

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C/2025/2093

14.4.2025

(Case T-88/25)

(C/2025/2093)

Language of the case: English

Parties

Applicant: Tiktok Technology Ltd (Dublin, Ireland) (represented by: E. Batchelor and M. Frese, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul Commission’s Implementing Decision C(2024) 8465 of 27 November 2024 determining the supervisory fee applicable to TikTok pursuant to Article 43(3) of Regulation (EU) 2022/2065 of the European Parliament and of the Council (<span class="oj-super oj-note-tag">1</span>) in its entirety; and

—order the Commission to pay its own costs and the applicant’s costs in connection with these proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

1.First plea in law, alleging that the contested decision infringes Article 43(5)(b) DSA by using average monthly active recipients (‘MAR’) estimates that do not satisfy the DSA’s legal definition of MAR in Rec. 77 and Article 3(p) DSA and by instead applying an estimation methodology that lacks a valid legal basis under Article 43 DSA.

—The decision unlawfully uses MAR estimates which do not meet the legal definition of MAR under the DSA. The decision also breaches the principle of equal treatment by applying the same approach to differently situated providers.

—There is no legal basis for the Commission to adopt a methodology for estimating MAR under Article 43 DSA, whether by a delegated regulation or a simple implementing act such as the decision. The decision infringes Article 43(5)(b) DSA by purporting to adopt a methodology for estimating MAR and using third-party data. Article 4(2) Delegated Regulation (<span class="oj-super oj-note-tag">2</span>), on which the decision relies to adopt the methodology, is inapplicable under Article 277 TFEU.

2.Second plea in law, alleging that the contested decision infringes Article 43(5)(c) DSA by failing to apply the fee cap of 0.05 % of the provider’s net income (the ‘Fee Cap’) to the applicant.

—The decision infringes Article 43(5)(c) DSA by not applying the Fee Cap to the applicant. The decision unlawfully claims the Fee Cap is to be applied to the provider’s corporate group, contrary to Article 43(5)(c) DSA which provides that the Fee Cap is applicable to the legal entity providing the service rather than its group.

—Article 5(2) Delegated Regulation, on which the decision relies, is inapplicable under Article 277 TFEU.

3.Third plea in law, alleging that the decision infringes Article 43(5)(b) DSA by applying residual charges to the applicant.

—The decision infringes the requirement that the supervisory fee is proportionate to each provider’s MAR under Article 43(5)(b) DSA by applying residual charges to the applicant.

—Article 5(4) Delegated Regulation, on which the decision relies, is inapplicable under Article 277 TFEU.

4.Fourth plea in law, alleging that the decision infringes Article 45(2) DSA in imposing a supervisory fee based on costs outside the scope of Article 45(2) DSA.

—The decision infringes Article 43(2) DSA by imposing a supervisory fee based on the Commission’s overall DSA costs. Costs necessary to perform tasks unrelated to supervision cannot be financed with the appropriations from the supervisory fees.

—The decision infringes Article 43(2) DSA by imposing a supervisory fee based on all Commission’s staff costs, including permanent staff. Article 2(2)(a) Delegated Regulation, on which the decision relies, is inapplicable under Article 277 TFEU

5.Fifth plea in law, alleging that the decision infringes the applicant’s right to be heard. The Provisional Determination of the amount of the annual supervisory fee and the access to file did not provide an adequate opportunity for the applicant to comment on the MAR data used by the Commission or on the fee calculation.

6.Sixth plea in law, alleging that the decision infringes the duty to state reasons. The decision does not provide sufficient reasons regarding the Commission’s estimations of TikTok’s MAR, the methodology used to estimate MAR of the other providers, its decision to ignore TikTok’s financial information, the identification of the providers who reached the Fee Cap, and the Commission’s costs covered by the supervisory fee. The calculations performed by the Commission also depart from what is described in the decision.

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Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (‘DSA’) (OJ 2022 L 277, p. 1).

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