Opera had argued that the European Commission had erred ‘by failing to designate Microsoft as a gatekeeper in relation to its web browser core platform service Edge’.
Norwegian web browser provider Opera has lost a legal challenge at the EU Court of Justice against the European Commission’s 2024 decision that Microsoft and its Edge browser should not be subject to the ‘gatekeeper’ designation and restrictions under the Digital Markets Act (DMA).
Opera had argued that the Commission had erred “by failing to designate Microsoft as a gatekeeper in relation to its web browser core platform service Edge, based on the finding that Edge is not an important gateway for business users to reach end users”.
In its judgement today (2 September), the EU’s General Court, based in Luxembourg, agreed with the Commission’s original decision that Edge does not “constitute an important gateway within the meaning” of the DMA and therefore Microsoft should not be deemed a gatekeeper in this context.
The court ruled that the Commission “did not err in considering that, although Microsoft had met the quantitative thresholds laid down in the DMA, it had put forward sufficiently substantiated arguments to demonstrate that Edge did not constitute an important gateway”.
It said that “the Commission was entitled, in particular, to rely on the low scale of usage of that browser and to compare it with that of other browsers, as those elements are relevant for assessing the actual importance of Edge as a gateway for business users to reach their end users”.
The judgement added: “The General Court also finds that the Commission was entitled to take into account the fact that Edge relies on the browser engine Blink, which reduces Microsoft’s ability to exercise autonomous control over certain key aspects of the service.
“Furthermore, it considers that the Commission was entitled to find that the integration of Edge into the Microsoft ecosystem, including its pre-installation on Windows and the other mechanisms to promote its use from which it benefits, did not contribute sufficiently to making Edge an important gateway.”
The DMA, as the EU court puts it, targets large digital platforms that occupy a central position in the digital economy and can be applied to services that constitute an essential gateway for businesses to reach end users, such as search engines, operating systems, social media platforms or web browsers.
The ‘gatekeeper’ designation imposes specific obligations, in aid of fairness and competitiveness, on qualifying services that meet certain criteria regarding size and market influence.
The Commission has previously applied or considered ‘gatekeeper’ designations through the DMA in various contexts to Big Tech giants such as Apple, over its various digital storefronts; Amazon and Microsoft, over their cloud services; and Google, which was recently fined €890m for DMA breaches.
Opera was founded more than 30 years ago in Oslo – where it maintains its headquarters – and has key hubs in Sweden and Poland.
A 2007 action from Opera against Microsoft eventually led to a €561m EU antitrust fine for the US giant in 2013 over failing to offer users a choice of web browser.
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