In Case T-1078/23 | Meta Platforms v Commission, the EU’s General Court annulled the European Commission’s decision designating Meta as a gatekeeper for Marketplace under the Digital Markets Act. However, it maintained the gatekeeper designation for Meta’s interpersonal communications service, Messenger.
In September 2023, the European Commission designated Meta as a gatekeeper under the DMA. It found that several services provided by Meta were distinct core platform services, in particular Facebook as an online social network, Messenger as an interpersonal communications service, and Marketplace as an online intermediation service.
The Commission considered that Meta met the quantitative thresholds set out in the DMA, meaning it could be presumed to satisfy the conditions for designation as a gatekeeper and that the services in question were important gateways for business users to reach end users. It also found that the arguments put forward by Meta did not obviously call those presumptions into question.
Meta brought an action for the partial annulment of the Commission’s decision, to the extent that it classified Messenger and Marketplace as important gateways under the DMA.
The General Court of the EU has now annulled the decision designating Meta as a gatekeeper for Marketplace, while maintaining Meta’s designation for its interpersonal communications service, Messenger.
Messenger
The General Court confirmed that Messenger is distinct from the Facebook social network. It found that Messenger is offered through standalone applications, can be used independently of the social network, and that Meta promotes tools specific to that service which allow businesses to engage with users. Arguments based on integration between the services did not call that finding into question.
The General Court also held that the Commission did not err in finding that Messenger, taken individually, is an important gateway. In calculating Messenger’s end users to assess whether the quantitative threshold under the DMA was met, the Commission was not required to count only those users of Messenger who were not also users of Facebook. In addition, the General Court stated that the Commission was not obliged to open a market investigation before finding that Messenger is an important gateway, in the absence of sufficiently substantiated arguments from Meta that manifestly called into question the presumptions in the DMA. Lastly, the General Court found that Meta’s rights of defence had been fully respected.
Marketplace
The General Court first observed that the legality of an EU act must be assessed on the basis of the facts and law at the time the measure was adopted. It found that, in assessing whether Marketplace qualified as a core platform service that is an online intermediation service, the Commission erred in law by relying solely on data from the three years preceding the designation, without taking account of changes made at the end of July 2023.
Second, the General Court found that the decision lacked sufficient reasoning because the Commission did not provide any concrete analysis of those changes or explain their effect on its finding that Marketplace enabled business users to offer goods and services to consumers. This was a necessary condition for classifying a service as an online intermediation service. The factors relied on in the decision were, in that respect, hypothetical and incomplete. In those circumstances, the General Court concluded that the decision did not meet the required standard of reasoning as regards Marketplace, because it allowed neither Meta to understand the reasons for its classification as a core platform service that is an online intermediation service nor the Courts of the EU to exercise their power of review.
As a consequence, the General Court annulled the decision to the extent that it designated Meta as a gatekeeper for Marketplace.
