Case C-744/25 P, Commission v Meta Platforms Ireland – a fee without a formula
The question is dry and the money is not. The Commission’s power to charge the platforms it supervises depends on a delegated act; the General Court found the act did not say how the platforms would be counted.
Facts
Article 43 of Regulation (EU) 2022/2065 requires the Commission to charge each provider of a very large online platform or search engine an annual supervisory fee, fixed by implementing act, in proportion to its average monthly active recipients in the Union (AMAR). Article 43(4) requires the Commission to lay down “the detailed methodology and procedures” for determining the fees by delegated act; it did so in Delegated Regulation (EU) 2023/1127. By Decisions C(2023) 8176 and C(2023) 8173 of 27 November 2023 the Commission set the 2023 fees for Facebook and Instagram, and for TikTok. Rather than rely on the AMAR figures the providers had reported, it relied on “other available information” under Article 4(2) of the Delegated Regulation, combining several third- party sources by a method described in an annex to each decision. On 10 September 2025 the General Court (First Chamber, Extended Composition) annulled both decisions — Case T‑55/24 for Meta (ECLI:EU:T:2025:842) and Case T‑58/24 for TikTok (ECLI:EU:T:2025:843) — while maintaining their effects for up to twelve months so that new decisions could be adopted. The Commission has appealed both judgments; this report concerns the Meta appeal, and the TikTok appeal in Case C‑745/25 P is framed in identical terms.
Grounds of Appeal
According to the Official Journal notice, the Commission asks the Court to set aside the judgment, give final judgment dismissing Meta’s action, or in the alternative refer the case back, and to order Meta to pay the costs.
First, the Commission submits that the General Court, in paragraphs 36 to 55 of the judgment under appeal, misinterpreted Commission Implementing Decision C(2023) 8176 final of 27 November 2023 determining the supervisory fee applicable to Facebook and Instagram pursuant to Article 43(3) of Regulation (EU) 2022/2065 of the European Parliament and of the Council (‘the contested decision’) by finding that the explanations in the annex to contested decision constitute a methodology for calculating the number of average monthly active recipients in the European Union (‘the AMAR’) of very large online platforms (‘VLOPs’) and of very large online search engines (‘VLOSEs’). In reality, the annex, which the Commission considered necessary to include in the contested decision to fulfil its duty to state reasons, simply explains: (i) the reasons motivating the Commission to rely on ‘other available information’ on AMAR within the meaning of Article 4(2) of Delegated Regulation (EU) 2023/1127, instead of on the self-reported AMAR of providers of designated VLOPs and VLOSEs; (ii) the reasons for which the Commission had to rely on several sources of information for that purpose, instead of on one single source; (iii) the sources from which the Commission selected that information; (iv) how the Commission extracted the information from those sources; and (v) how the Commission aggregated that information to arrive at a reliable estimate of each designated service’s AMAR in view of determining the corresponding coefficient (U).
Second, the Commission submits that the General Court, in paragraphs 36 to 55 of the judgment under appeal, misinterpreted and misapplied Articles 43(4) and 87 of Regulation (EU) 2022/2065 by requiring the Commission, if it wishes to rely on ‘other available information’ within the meaning of Article 4(2) of Delegated Regulation (EU) 2023/1127 for determining the coefficient (U) of designated services for the purposes of setting their respective supervisory fees, to include in that delegated act the explanations contained in the annex of the contested decision. That ground is supported by two arguments: first, in making that finding, the General Court conflated the empowerment in Article 43(4) with that in Article 33(3) of Regulation (EU) 2022/2065 and; second, in making that finding, the General Court failed to recognise that the Commission is already limited, in the type of information on which it may rely to determine AMAR for the purposes of allocating its supervisory costs, by the common parameters for counting AMAR which are contained in Regulation (EU) 2022/2065 itself.
Sources
OJ notice C/2026/164 (EUR‑Lex) · TikTok appeal, C‑745/25 P (EUR‑Lex) · Case file on CURIA · Judgment under appeal, T‑55/24 (ECLI:EU:T:2025:842) · Regulation (EU) 2022/2065 · Delegated Regulation (EU) 2023/1127
Comment
The appeal turns on the difference between explaining a calculation and prescribing one. The General Court held that the annex to the fee decision — which set out the sources the Commission used, how it extracted figures from them and how it combined them into an estimate of each service’s users — amounted to a methodology for calculating AMAR, and that under Article 43(4) any such methodology had to be in the delegated act, not in the individual decision applying it. The Commission’s first ground is that the annex was reasoning, not rule: it told Meta why and how the figure had been reached, as the duty to state reasons required, and the General Court mistook a statement of reasons for an act of general application.
The second ground is the more revealing. The Commission says the General Court “conflated the empowerment in Article 43(4) with that in Article 33(3)”. Article 33(3) is the power to adopt a delegated act on the methodology for counting recipients for designation; Article 43(4) is the power to adopt one on the methodology for fees. The Commission has exercised the second but not the first — there is still no delegated act on how active recipients are counted — and its position is that fee-setting may rely on “other available information” without a counting method ever having been prescribed, because the Regulation’s own parameters constrain it enough. The General Court’s judgment, read with the Commission’s plea, exposes a gap at the centre of the Act: the number on which designation, obligations and fees all depend has no standardised definition in secondary law, and each time the Commission uses it the platforms ask where the rule is. Zalando’s appeal in Case C‑724/25 P puts the same question from the designation side.
Practically, the stakes for 2023 are limited — the General Court preserved the decisions’ effects and the Commission may re-adopt them — but the principle governs every future year’s fees for every designated service, and the Commission’s litigation posture suggests it does not intend to write the missing delegated act if it can avoid it. The Court’s answer will say whether it must.