Challenges to European Commission’s gatekeeper designations

8 January saw the publication of appeals by Apple and Meta against the European Commission's September 2023 decisions designating them as ‘gatekeepers’ for the purposes of Regulation 2022/1925 on contestable and fair markets in the digital sector (Digital Markets Act (DMA)).

Apple’s designation is in relation to its operating system iOS and its online intermediation service App Store.  Apple claims the designation should be annulled insofar as it specified Apple’s operating system iOS as an important gateway for business users to reach end users, and insofar as it imposes on Apple an obligation to comply with the interoperability obligations of Article 6(7) of the DMA.  Apple alternatively asks the General Court to declare Article 6(7) inapplicable pursuant to Article 277 of the TFEU claiming that Article 6(7) is inconsistent with the requirements of the European Charter of Fundamental Rights and the principle of proportionality.  It further alleges that the Commission misinterpreted and misapplied the DMA and made material factual errors in reaching the conclusions that (1) App Store is single core platform service that constitutes an important gateway for business users to reach end users and (2) Apple iMessage is a number-independent interpersonal communications service.

In a separate appeal, Apple is challenging the Commission’s decision to launch a market investigation to determine whether its instant messaging service iMessage falls under the scope of the DMA.

Details have also been published of Meta’s arguments for challenging certain aspects of its designation.  It disputes the Commission’s conclusions that Facebook Messenger and Facebook Marketplace constitute core platform services pursuant to Article 3(9) of the DMA.

ByteDance (owner of Tik Tok) has challenged the platform’s gatekeeper designation outright.   It disputes findings that it has an “entrenched” position in the market.  It has also sought interim measures from the General Court to suspend its obligations under the DMA pending a challenge against its gatekeeper designation.

Microsoft, Google and Amazon have not brought appeals against their designations or the inclusion of their core platform services.

Case T-1080/23 – Apple v Commission (OJ C/2024/563)

Case T-1079/23 – Apple v Commission (OJ C/2024/562)

Case T-1078/23 – Meta v Commission (OJ C/2024/561)