Judgments of the General Court in Case T-55/24 and T-58/24
INDEX
The case
In judgements T-55/24 and T-58/24, the General Court annulled the European Commission’s 2023 implementing decisions – Commission Implementing Decision C (2023) 8176 and Commission Implementing Decision C (2023) 8173 – determining the supervisory fees for Facebook, Instagram and TikTok under Article 43(3) of Regulation (EU) 2022/2065 (the “Digital Services Act” or “DSA”).
The Digital Services Act, adopted on 19 October 2022, is an EU regulation designed to create a safer and more transparent online environment for consumers and companies in the European Union. It strengthens consumer protection, defines clear responsibilities for online platforms and social media and introduces measures against illegal content, disinformation and unsafe products. The DSA also promotes transparency in algorithms used in recommending content or products, gives users more control over what they see online and ensures accountability for very large online platforms (“VLOPs”) and very large online search engines (“VLOSEs”). Ultimately, it aims at safeguarding fundamental rights while encouraging innovation and competitiveness in the EU’s digital market.
Under Article 43(1)-(3)[1] of the DSA, the Commission may charge VLOPs (i.e., very large online platforms) and VLOSEs (i.e., very large online search engines) an annual supervisory fee, determined by means of an implementing decision, to cover the estimated costs of its supervisory tasks conferred on it by the DSA.
Indeed, Article 43(2)[2] of the DSA provides that such a fee should cover the estimated costs that the Commission incurs in relation to its supervisory tasks under this Regulation, and in particular “costs related to the designation pursuant to Article 33, to the set-up, maintenance and operation of the database pursuant to Article 24(5) and to the information sharing system pursuant to Article 85, to referrals pursuant to Article 59, to supporting the Board pursuant to Article 62 and to the supervisory tasks pursuant to Article 56 and Section 4 of Chapter IV”.
More specifically, according to Article 43(3)-(4) of the DSA, in order to establish the supervisory fees, the Commission has to: (i) adopt a delegated act laying down the detailed methodology and procedures for determining the annual supervisory fees, and (ii) adopt an implementing act establishing the amount of the annual supervisory fee for each provider of VLOP or VLOSE, applying the methodology laid down in the delegated act.
Finally, Article 43(5) of the DSA states that the annual supervisory fee should be proportionate to the Average Monthly Active Recipients (“AMAR”) in the European Union of each VLOP and VLOSE.
In March 2023, the Commission adopted Delegated Regulation (EU) 2023/1127, supplementing the DSA with the detailed methodologies and procedures regarding the supervisory fees. Subsequently, in November 2023, the Commission issued implementing decisions determining the 2023 supervisory fees for Facebook, Instagram and TikTok. For the purposes of determining the amount of the fees, the Commission relied on data provided by two third-party operators – SensorTower and Similarweb – and applied a common methodology for all VLOPs and VLOSEs, which was annexed to the decisions, in order to calculate the AMAR of the designated services.
In case T-55/24, Meta challenged Decision C(2023) 8176, arguing that the methodology used for calculating the AMAR was erroneous and unlawful, as the Commission had exercised its delegated power by means of individual implementing decisions. Specifically, Meta claimed that the Commission had improperly used an implementing decision to introduce a new common methodology for calculating the AMAR, which should have been established through a delegated regulation, as required by Article 33(3) of the DSA[3]. The Commission, however, countered that Article 33(3), which provides for the adoption of a delegated regulation to establish the AMAR, makes no reference to Article 43, which lays down the rules on supervisory fees, and vice versa. Therefore, by annexing the common methodology to the implementing decisions, the Commission argued that it had not circumvented the procedural requirements for adopting a delegated act.
In case T-58/24, TikTok challenged Decision C(2023) 8173 alleging that there was no legal basis for the Commission to adopt, by way of a delegated regulation or by means of an implementing act such as the contested decision, a methodology for calculating the AMAR within the context of Article 43 of the DSA and that, in any event, the Commission was not entitled to adopt that methodology in an implementing decision without complying with Article 33(3) of the DSA. The Commission, on the other hand, argued that the methodology annexed to the contested decision was simply to inform the providers with respect to the data and sources of information used, and not a methodology within the meaning of Article 33(3) of the DSA, and that it had not infringed Article 43 of the DSA.
The General Court found that the Commission had indeed misused an implementing decision – whereas the DSA requires the use of a delegated regulation – to define the methodology for calculating the AMAR, which is a core component of determining supervisory fees. The Court held that, although Article 43(4) of the DSA does not expressly require a delegated act to define the methodology for calculating the AMAR, the provision nevertheless implicitly requires that such methodology, being essential to the fee determination, must be laid out in a delegated regulation. According to the Court, Article 43(4) of the DSA creates a link between the method of determining the annual supervisory fees, which can only be established by the adoption of a delegated regulation, and the AMAR of the designated services in the light of which those fees must be determined. Since the calculation of the AMAR is an essential and indispensable element of the determination of the fee, the Commission’s obligation, provided for by Article 43(4) of the DSA, to establish in a delegated regulation the ‘detailed’ methodology and procedures for the determination of the fees entails, implicitly but necessarily, the obligation to establish in such an act, at the very least, sufficiently detailed elements of the method for calculating the AMAR.
Consequently, by adopting the AMAR calculation methodology in an implementing decision rather than a delegated regulation, the Commission infringed Articles 43(3)-(5). Indeed, such a methodology, given its wording, its content and its length, has the characteristics of a document of a general nature which is intended to apply to all providers, and not merely an element of the reasoning of the contested decision, and thus cannot be annexed to an implementing decision.
Although the decisions were annulled, the Court allowed their effects to remain valid for up to 12 months to avoid disruption of the DSA’s supervisory framework. During this period, the Commission is expected to adopt a proper delegated regulation establishing the AMAR calculation methodology before issuing new fee decisions. This judgment may also affect how supervisory fees are calculated for other platforms in the future.
Relevance of the case
The General Court’s annulment of the Commission’s 2023 implementing decisions on supervisory fees under the Digital Services Act (DSA) marks a significant clarification of the EU’s institutional framework and the limits of the Commission’s powers.
At the heart of the dispute was the methodology used to calculate the Average Monthly Active Recipients (AMAR) – a key metric for determining the annual supervisory fee for very large online platforms (VLOPs). The Court found that the Commission had misused an implementing decision to introduce a methodology that should have been adopted via a delegated regulation, as required by Article 43(4) DSA.
This ruling is important for several reasons:
- Institutional Legitimacy and Legal Certainty. The Court reaffirmed that procedural safeguards matter, especially when the Commission exercises quasi-legislative powers. By insisting on the use of delegated acts for general methodologies, the judgment strengthens transparency, accountability, and legal certainty in the implementation of the DSA.
- Impact on Future Fee Calculations: The decision sets a precedent for how supervisory fees must be calculated going forward. It may prompt the Commission to revise its approach not only for Meta and TikTok, but for all designated VLOPs and VLOSEs, ensuring that future decisions are procedurally sound and legally robust.
- Balance Between Enforcement and Procedural Rigor. While the Court annulled the decisions, it allowed their effects to remain valid for 12 months, showing a pragmatic approach that avoids disrupting the DSA’s supervisory framework. This gives the Commission time to adopt a proper delegated regulation and reissue fee decisions in compliance with the law.
In essence, the judgments underscore that substance cannot override procedure – even in the fast-evolving digital regulation landscape. They serve as a reminder that institutional discipline and respect for legislative hierarchy are essential to the credibility and effectiveness of EU law.
[1] See for reference Article 43(1)-(5) DSA: “1. The Commission shall charge providers of very large online platforms and of very large online search engines an annual supervisory fee upon their designation pursuant to Article 33.
2. The overall amount of the annual supervisory fees shall cover the estimated costs that the Commission incurs in relation to its supervisory tasks under this Regulation, in particular costs related to the designation pursuant to Article 33, to the set-up, maintenance and operation of the database pursuant to Article 24(5) and to the information sharing system pursuant to Article 85, to referrals pursuant to Article 59, to supporting the Board pursuant to Article 62 and to the supervisory tasks pursuant to Article 56 and Section 4 of Chapter IV.
3. The providers of very large online platforms and of very large online search engines shall be charged annually a supervisory fee for each service for which they have been designated pursuant to Article 33. The Commission shall adopt implementing acts establishing the amount of the annual supervisory fee in respect of each provider of very large online platform or of very large online search engine. When adopting those implementing acts, the Commission shall apply the methodology laid down in the delegated act referred to in paragraph 4 of this Article and shall respect the principles set out in paragraph 5 of this Article. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 88.
4. The Commission shall adopt delegated acts, in accordance with Article 87, laying down the detailed methodology and
procedures for:
(a) the determination of the estimated costs referred to in paragraph 2;
(b) the determination of the individual annual supervisory fees referred to in paragraph 5, points (b) and (c);
(c) the determination of the maximum overall limit defined in paragraph 5, point (c); and
(d) the detailed arrangements necessary to make payments.
When adopting those delegated acts, the Commission shall respect the principles set out in paragraph 5 of this Article.
5. The implementing act referred to in paragraph 3 and the delegated act referred to in paragraph 4 shall respect the following principles:
(a) the estimation of the overall amount of the annual supervisory fee takes into account the costs incurred in the previous year;
(b) the annual supervisory fee is proportionate to the number of average monthly active recipients in the Union of each very large online platform or each very large online search engine designated pursuant to Article 33;
(c) the overall amount of the annual supervisory fee charged on a given provider of very large online platform or very large search engine does not, in any case, exceed 0,05 % of its worldwide annual net income in the preceding financial year”.
[2] See note above.
[3] See for reference Article 33 DSA: “The Commission may adopt delegated acts in accordance with Article 87, after consulting the Board, to supplement the provisions of this Regulation by laying down the methodology for calculating the number of average monthly active recipients of the service in the Union, for the purposes of paragraph 1 of this Article and Article 24(2), ensuring that the methodology takes account of market and technological developments.”
