EU court annuls Meta Marketplace designation

The General Court of the European Union has annulled the European Commission’s decision designating Meta as a gatekeeper for Marketplace under the Digital Markets Act, while upholding the company’s designation for Messenger.

The case concerned the Commission’s 5 September 2023 decision designating Meta as a gatekeeper for several core platform services, including Facebook, Messenger, and Marketplace. Meta challenged the decision in part, contesting the classification of Messenger and Marketplace as important gateways under the DMA.

The General Court upheld the Commission’s assessment of Messenger, finding that the service is a number-independent interpersonal communications service distinct from Facebook. The court said Messenger is available through standalone applications, can be used independently of Facebook, and includes tools that allow businesses to engage with users.

The court also found that the Commission did not have to count only Messenger users who were not also Facebook users when assessing whether the quantitative threshold under the DMA was met. It also said the Commission was not required to open a market investigation in the absence of sufficiently substantiated arguments from Meta calling the DMA presumptions into question.

For Marketplace, the court found that the Commission erred in law by relying only on data from the three years preceding designation without taking account of changes made at the end of July 2023. Those changes limited the number of listings that could be published per user and led to the disappearance of the criterion used by the Commission to identify business users.

The court also found that the Commission had not provided sufficient reasoning for classifying Marketplace as an online intermediation service. It said the Commission failed to provide a concrete analysis of the July 2023 changes or to explain their effect on whether Marketplace-enabled business users could offer goods and services to consumers.

As a result, the decision was annulled only to the extent that it designated Meta as a gatekeeper for Marketplace. Meta’s Messenger designation remains in place.

Why does it matter?

The judgement is an important test of how the EU courts will review Digital Markets Act gatekeeper designations. It confirms that the Commission can rely on DMA presumptions where companies do not provide sufficiently substantiated counterarguments, as seen with Messenger. But it also shows that the Commission must properly assess relevant changes and provide sufficient reasoning when classifying a service as a core platform service, as the Marketplace annulment demonstrates.

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