US Seeks to Intervene in X and Musk's EU Court Fight Over €120m DSA Fine
The Justice Department wants to join X's and Elon Musk's challenges to the EU's first Digital Services Act fine, but the court's notice ran on May 4 and its intervention window closed around June 25. The desk expects the General Court to refuse the application and no judgment on the merits before 2028.
Two notices in the EU's Official Journal of May 4, 2026 explain more about this week's transatlantic row than the press release that started it. They announce Case T-114/26, brought by X Internet and X Holdings, and Case T-121/26, brought by Elon Musk personally, both seeking to annul the European Commission's decision of December 5, 2025 that fined X €120 million under the Digital Services Act. On September 24 the US Justice Department said it had filed an application to intervene in both cases in support of X and Musk. Assistant Attorney General Brett Shumate said the Commission "inappropriately attempted to expand its regulatory authority to reach American companies not present or operating within its jurisdiction."
The filing is a request. It does not suspend, reduce or overturn the fine, and the desk's view is that it will do little inside the courtroom. Its value is as a trade signal, and that signal was already being sent by other means.
The procedure is where Washington's problem begins. Article 40 of the Statute of the Court of Justice gives an automatic right to intervene to EU member states and institutions, and a narrower one to EEA states and the EFTA Surveillance Authority when EEA matters are at stake. Everyone else, which now includes the United States, has to "establish an interest in the result of the case." The courts read that as a direct, present interest in the outcome the supported party is asking for, which is more than an interest in the legal questions the case raises. A third country is not barred: in Venezuela v Council in June 2021 the Court of Justice held that a non-member state counts as a "legal person" able to sue. But an intervener may only support the form of order sought by a party. It cannot add new pleas, and it takes the case as it finds it.
Then there is the clock. Under Article 143(1) of the General Court's rules, an application to intervene must arrive within six weeks of the Official Journal notice, plus a flat 10 days for distance. For a notice published on May 4, that is 52 days, which lands on June 25. The rules no longer allow late interventions, and the court enforces the limit to the day: in July the Court of Justice upheld the rejection of an IT users' association that asked to join a cloud-licensing case one day after its window shut. The DOJ release does not say when the US application was lodged. If it went in this month, the General Court has little room to admit it.
The substance tells you why Washington cares anyway. The Commission split the fine into €45 million for X's paid blue check, which it called deceptive design under Article 25(1); €35 million for an advertising repository that lacked the content, topic and payer of ads (Article 39); and €40 million for terms that barred researchers from collecting public data (Article 40(12)). Those add up to €120 million. The X Holdings pleadings attack each finding, but the plea with the widest reach is the second: that the Commission was wrong to treat the "provider" of X as including entities other than the Irish operating company. X.AI Holdings, in a third case (T-120/26) that the DOJ release does not mention, goes further and argues that competition law's "single economic entity" doctrine has no place in DSA proceedings. The DOJ release says the fine was calculated on the worldwide turnover of "the single economic unit ultimately controlled by Elon Musk or that of X Holdings Corp."
The group-level reading matters financially. X now sits inside SpaceX, which listed in June and reported 2025 revenue of $18.7 billion in its prospectus. The DSA caps fines at 6% of worldwide turnover. If the group-level reading survives, the ceiling for a future X breach is roughly $1.1 billion on last year's numbers, against a current fine of about $136 million, or 0.7% of that revenue. Musk's lawyers want the ceiling set at the level of an Irish subsidiary with a fraction of that turnover. Washington is backing the same line when it talks of companies "not present or operating" in the EU.
Politics explains the timing. In December 2025, weeks after the fine, the State Department barred five Europeans, including former commissioner Thierry Breton, from US visas over what it called censorship. President Trump said on July 24 that he would start a Section 301 investigation into EU fines on American tech firms after the Commission fined Google €890 million under the Digital Markets Act. As of early September, Brussels Signal reported that USTR had yet to open it. Section 301 matters more than it used to: the Supreme Court struck down the IEEPA tariffs in February and the stopgap Section 122 surcharge ran out on July 23. DMA fines on US companies now total €1.59 billion (Apple €500 million, Meta €200 million, Google €890 million).
The counter-argument is that none of this needs the court's permission. An application that is refused still puts the US on the record, gives USTR a filing to cite in a Section 301 case and tells the Commission that every DSA decision against an American platform now carries a diplomatic cost. That is fair, as far as it goes. The Commission's record since the visa bans suggests the cost has not changed its behaviour. It fined Temu €200 million in May and AliExpress €550 million on July 20, so €750 million of the €870 million in DSA fines so far, about 86%, has landed on Chinese-owned marketplaces. That weakens the discrimination story USTR would need to tell. On July 16 the Commission also accepted X's own action plan to fix the blue check, the ad repository and researcher access, with a six-month implementation period. The compliance fight is largely over. What remains in Luxembourg is the €120 million and the group-liability doctrine.
The General Court will not be quick. Its adjusted average case length was 16 months in 2025, a figure that includes a large volume of routine trademark appeals. Three linked annulment actions with six or eight pleas each, a rights-of-defence fight over access to the file and at least one contested intervention will run longer, and a loser can appeal to the Court of Justice.
The losers from delay are the other platforms. Meta received preliminary findings in October 2025 that Facebook and Instagram breached the same researcher-access rule, Article 40(12), and further findings on under-13 users in April and on "addictive design" in July. TikTok got its own addictive-design findings in February. None of those files waits for X's case. A General Court ruling that reads Article 40(12) narrowly would help Meta and TikTok in later appeals, but it is likely to arrive after the Commission has decided their cases. The winners are Musk's lawyers, who now have a sovereign sharing their brief, and the Commission, which can present any US setback in court as proof that the DSA is applied by judges.
The desk's call: the General Court will refuse the US application, by order before the end of the first quarter of 2027, and it will not rule on the merits of T-114/26 before the first quarter of 2028. The fine stands until then. The desk also expects the Commission to adopt at least one DSA non-compliance decision against Meta or TikTok before the General Court rules on X.
The checkpoints are dated. AliExpress owes the Commission an action plan by October 20. X's six-month implementation period for the July action plan ends in mid-January 2027, when the Commission can decide whether periodic penalty payments are needed. A formal Section 301 notice naming the DSA would raise the political stakes without changing the court's timetable. An order admitting the US, or evidence that the application was lodged before June 25, would break the first part of the call.