Oct 07, 2026
On 2 September 2026, in Case T-357/24, Opera Norway. v. European Commission, the General Court of the European Union (the “Court”) delivered a judgment on an action for annulment brought by Opera Norway (Opera) against a decision of the European Commission (the Commission), adopted pursuant to Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector (the “DMA”). The Court rejected in full Opera’s request for annulment of the Commission’s decision not to designate Microsoft as a gatekeeper under the DMA with respect to Edge, Microsoft’s web browser.
Background to the dispute
The DMA establishes a harmonised regulatory framework for the designation of gatekeepers, namely enterprises providing core platform services (“CPSs”) which, subject to the other conditions laid down by the regulation, constitute important gateways for business users to reach end users. As further explored in previous newsletter, under Article 3(1) DMA, designation as a gatekeeper involves three substantive conditions, as the enterprise must:
- have a significant impact on the internal market,
- provide a CPS which is an important gateway for business users to reach end users, and; enjoy an entrenched and durable position, or foreseeably do so. In turn, Article 3(2) translates those qualitative concepts into quantitative presumptions. In particular, the “important gateway” condition is presumed where the CPS has at least 45 million monthly active end users in the European Union (EU) and 10,000 yearly active business users established in the EU.
In conformity with Article 3(3) of the DMA, enterprises meeting the Article 3(2) thresholds must notify the Commission, but under Article 3(5) they can try to rebut the Article 3(2) presumption, on the basis of circumstances in which the relevant CPS operates, thus demonstrating that they do not satisfy Article 3(1) requirements. Against this backdrop, on 3 July 2023 Microsoft notified to the Commission that it met the thresholds vis-à-vis several of its CPS, comprising Windows, Microsoft Advertising, Bing (Microsoft’s search engine) and Edge (Microsoft’s web browser). At the same time, it also sought to rebut the presumption that some of those services satisfied the gatekeeper conditions. After investigation, on 12 February 2024, the Commission concluded that Edge was not an important gateway for business users to reach end users and therefore declined to designate Microsoft as a gatekeeper. The decision was challenged by Opera, the provider of the competing Opera web browser.
The issues at stake
Compared with other recent litigation concerning the DMA, the case raises a relatively focused question concerning the operation of the gatekeeper designation mechanism itself. Opera’s challenge offered the Court an opportunity to clarify both the strength of the presumptions arising from the quantitative thresholds under Article 3(2) DMA and the scope of the mechanism under Article 3(5) allowing an enterprise exceptionally to rebut those presumptions.
The findings of the Court
Though Opera was not the addressee of the Commission’s decision, the Court considered its action admissible. Had Microsoft been designated as a gatekeeper in relation to Edge, the DMA (Article 6(3)) would have imposed, inter alia, obligations concerning browser choice, from which Opera, as one of the principal competing browser providers, could have benefited. The Commission’s non-designation decision therefore directly affected Opera’s legal situation by preventing it from benefiting from obligations which would otherwise have applied to Microsoft. As regards individual concern, the Court also took into account the potential substantial effect of the decision on Opera’s competitive position and its participation in the Commission’s market investigation. Opera was consequently directly and individually concerned within the meaning of Article 263 TFEU.
Though Opera was not the direct addressee of the Commission’s decision, the Court considered its action admissible. Under Article 6(3) DMA, gatekeepers are required to provide users with a browser choice screen, materially displaying the several alternatives available. The removal of Microsoft’s designation would therefore deprive Opera, one of the principal web browsers and a competitor of Microsoft itself, of the opportunity to have its browser displayed on screen, together with competitors. As such, the Commission’s decision directly prevented Opera from benefiting from a regulatory obligation which would otherwise have assisted it in reaching Edge users, resulting in Opera’s being individually and directly concerned within the meaning of Article 263 TFEU and the Plaumann case-law.
On the merits, Opera’s arguments were rejected in full. The Court acknowledged that, on the facts of the case, Edge exceeded the quantitative thresholds under Article 3(2) DMA, but this only gave rise to a rebuttable presumption that it constituted an important gateway. Article 3(5) expressly allows enterprises to demonstrate that, because of the circumstances in which the relevant CPS operates, requirements under Article 3(1) are not satisfied. In assessing the claim of rebuttal, the Commission is not limited to reconsidering the figures underlying the thresholds themselves but may examine other factors which concretely and specifically call the resulting presumption into question.
In this framework, the presumption could be rebutted considering the actual scale of usage of the CPS, which may result from checking the number of web-page views. As a result, Edge accounted for approximately 5.8% of web-page views across devices in Europe, considerably below Chrome and Safari. Furthermore, although Edge benefits from its integration with Windows and Microsoft had adopted various practices to encourage its use, those advantages had not translated into correspondingly significant usage of Edge. Furthermore, Edge relies on Blink, the open-source browser engine also used by Chrome and Opera, thereby limiting Microsoft's independent control over an important component determining how web content is rendered.
The findings of the Commission on actual scale of usage were also confirmed by responses received from business users and other market participants, fewer than one third of whom regarded Edge as important or crucial. All these elements confirmed that the existence of a powerful ecosystem may be relevant when assessing whether a CPS constitutes an important gateway, but does not by itself establish such a position where actual user behaviour points in the opposite direction. The Court therefore confirmed that Edge did not constitute an important gateway for business users to reach end users and dismissed Opera’s action in its entirety.
The way forward
The judgment provides an important clarification of the DMA gatekeeper designation mechanism. Meeting the quantitative thresholds under Article 3(2) DMA does not automatically result in designation: the presumptions established by that provision are genuinely rebuttable under Article 3(5), and the Commission may take into account qualitative as well as quantitative circumstances capable of demonstrating that a CPS does not, in practice, constitute an important gateway between business users and end users. The judgment is also noteworthy from an institutional perspective, as it confirms that competitors may, in appropriate circumstances, have standing to challenge a Commission decision declining to designate another undertaking as a gatekeeper, notwithstanding that they are not the addressees of that decision. In an ecosystem involving gatekeepers, business users, end users and competing service providers, the finding may therefore prove significant for future DMA litigation.
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