A company can meet a regulatory threshold and still challenge the assumptions flowing from it. The harder question is how much evidence it must produce before regulators must investigate.
Advocate General Andrea Biondi addressed that question on October 15 in ByteDance’s appeal concerning TikTok’s gatekeeper designation under the EU Digital Markets Act.
He recommended dismissing the parts of the appeal examined in his opinion. The opinion is non-binding. The Court of Justice has not delivered its judgment.
A threshold creates a presumption, not an automatic answer to every objection
Under the DMA framework described by the Court, meeting quantitative thresholds creates presumptions supporting gatekeeper designation.
Biondi’s proposed approach requires sufficiently convincing arguments that seriously challenge those presumptions. Merely creating doubt is insufficient, but a company need not conclusively prove at that preliminary stage that it is not a gatekeeper.
Where the prescribed threshold for substantiated objections is met, an investigation is required, subject to the qualification identified in his opinion.
The distinction matters: a preliminary rebuttal process should not be confused with either an automatic investigation or a complete trial of the designation.
Competition from other platforms is not necessarily decisive
The opinion also addresses arguments about TikTok’s scale, its lack of a wider ecosystem and users’ participation on competing networks.
Biondi considered that using other networks does not, by itself, establish that TikTok is not an important gateway between business users and end users. He also proposed different reasoning from the General Court on the right to be heard.
The practical implication is that relative size and competitive alternatives must be connected to the statutory question. A market narrative alone may not answer it.
Why the procedural issue matters
For counsel challenging a designation, the initial evidence package can shape the available process.
Arguments should identify the precise presumption being contested, explain why the supporting evidence matters and distinguish serious rebuttal from general disagreement with regulation.
The same discipline applies when reporting the case. The Advocate General’s recommendation is an important development, but it is not a ruling that ByteDance has lost its appeal.
Canadian relevance
The opinion concerns EU legislation. It does not determine Canadian competition law or establish a Canadian gatekeeper regime.
Canadian counsel advising businesses operating in Europe should nevertheless follow the eventual judgment for its treatment of designation evidence and procedural protections.
The emerging question is not simply whether a platform has rivals, but whether its evidence seriously challenges the legal basis for designation.
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Sources: Court of Justice: Advocate General’s opinion summary .