First-ever successful appeal under the Digital Markets Act

03/06/26

The General Court has handed down a significant judgment on the designation of gatekeepers under the EU Digital Markets Act. 

The case concerned the designation of Meta as a gatekeeper for Facebook Messenger and Facebook Marketplace under the DMA.  In September 2023 the European Commission had designated Facebook Marketplace as an online intermediation service (OIS) on the basis that it allowed business users to offer goods and services to consumers. The Commission also designated Messenger as a number independent interpersonal communication service (NI-ICS) which allows people to communicate via the internet without using a telephone number.

The General Court annulled the decision designating Meta as a gatekeeper for Facebook Marketplace.  The Court held that the Commission was wrong as a matter of law to rely on data on the use of Marketplace without taking account of important changes made at the end of July 2023, which had actively prevented business users from using Marketplace. The Commission did not provide any concrete analysis of those changes or explain their effect on the Commission's finding that Marketplace enabled business users to offer goods and services to consumers, a necessary condition for classifying a service as an OIS. The Court held that the factors relied on by the Commission were hypothetical and incomplete. The Commission's decision was therefore also vitiated by inadequate reasoning.

The General Court upheld the decision designating Meta as a gatekeeper for Facebook Messenger on the basis that it is a NI-ICS that is distinct from the Facebook social network core platform service.

The full judgment can be found here.