Microsoft Edge remains outside the special rules for "gatekeepers" after the EU Court rejects the Opera action

The Court of Justice of the European Union confirmed the Commission's decision not to subject Edge to additional obligations under the Digital Markets Act. Opera Norway, the company developing the Opera browser and competing with Edge, had challenged this decision, arguing that the integration of Microsoft's browser into Windows provides a sufficient advantage for the application of DMA rules.

Microsoft Edge can remain outside the additional obligations applied to "gatekeepers" under the Digital Markets Act, after the Court of Justice of the European Union rejected on September 2 the action brought by Opera Norway, the Norwegian company developing the Opera browser and competing with Edge. Opera had contested the European Commission's decision not to designate Microsoft as a gatekeeper for its browser, arguing that Edge's position in the Windows ecosystem and the advantages resulting from pre-installation and default settings justified the application of DMA rules.

In short The EU Court fully rejected Opera Norway's action against the decision whereby the Commission refused to designate Microsoft as a gatekeeper for Edge. Edge represented 5.8% of web page views across all types of devices in Europe in December 2022, compared to 59% for Chrome and 22% for Safari. The Court accepted that Edge's dependence on the Blink browser engine limits Microsoft's autonomous control over essential features of the browser. The pre-installation of Edge in Windows, its default setting, and promotion through other Microsoft services were not sufficient for the browser to be considered an important gateway between companies and users. Opera was nonetheless considered directly and individually affected by the decision, as the designation of Edge could have led to the display of Opera on the browser choice screen for Windows users. Opera Norway develops the Opera browser, one of Edge's competitors in the European market. The company was among the browser providers consulted by the Commission during the investigation into Edge and subsequently challenged the February 2024 decision whereby Microsoft was not designated as a gatekeeper for the browser.

The dispute began after Microsoft notified the Commission in 2023 that Windows, Bing, Edge, and Microsoft Advertising exceeded the quantitative thresholds set by the Digital Markets Act. Windows was designated as a service held by a gatekeeper, but Microsoft argued that Bing, Edge, and Microsoft Advertising did not practically function as sufficiently important gateways between companies and users, even though they exceeded the numerical criteria. The Commission opened an investigation and, in February 2024, accepted this argument. In the case of Edge, one of the main elements analyzed was the actual level of usage. The data available to the Commission showed that Microsoft's browser represented 5.8% of web page views across all types of devices in Europe in December 2022. Chrome had 59%, Safari 22%, and for the period 2020–2022, Firefox stood at 6.4%, above the 3.9% attributed to Edge for the same period.

Opera argued that using such comparisons amounted to an inappropriate market share analysis for the designation of a gatekeeper. The Court rejected the argument and established that the level of usage can be used to assess the real importance of a service without this meaning defining a market in the classical sense of competition law. A second element was the technical architecture of Edge. Microsoft's browser uses Blink, the open-source engine also used by Chrome and Opera and managed within the Chromium project. The browser engine controls essential functions such as rendering and displaying web pages, their speed, reliability, and compatibility. The Court accepted the Commission's conclusion that dependence on Blink reduces Microsoft's autonomy over core elements of Edge. Even though Microsoft can propose changes to Blink, these must be evaluated and approved within the Chromium project, which limits the company's ability to unilaterally control the engine. The judges considered that this element may be relevant for assessing Microsoft's ability to use the browser to influence to its own advantage the activities of companies providing online content and services.

Opera placed greater importance on the advantages gained by Edge through integration into Windows. Microsoft pre-installed the browser on its own operating system, set it as default, pinned it to the taskbar, and configured some Windows services so that pages would automatically open in Edge. When users tried to download a competing browser from Edge, Microsoft displayed messages encouraging them to abandon this choice, and Bing Chat at one point benefited from preferential access through Edge. The Court confirmed, however, that these practices did not make Edge sufficiently important in actual usage. Even on Windows computers, Chrome was used much more intensively than Edge, and Edge had a usage level close to Firefox. Integration into the Microsoft ecosystem did not produce, in the court's assessment, a sufficiently strong advantage for the browser to be considered an important gateway in the sense of the DMA.

The ruling also contains a favorable finding for Opera regarding its right to challenge the decision. The Commission and Microsoft argued that the Norwegian company was not sufficiently directly and individually affected to be able to bring the action, but the Court rejected this objection. The central argument concerns the browser choice screen provided by the DMA. If Microsoft had been designated as a gatekeeper for Edge, Edge users on Windows would have had to be offered a list of the main available browsers and the option to choose one of them as the default. The Court found that Opera was one of the main browsers in Europe and could have appeared on this list, just as it already appeared on the choice screens offered for Chrome and Safari. The court considered that this possibility could have a significant commercial effect for Opera. Edge and Opera had similar usage levels on certain metrics, and Opera is optimized for Windows. A choice screen would have allowed the company to more easily reach Edge users and increase its ability to compete with Microsoft.

This conclusion granted Opera the right to obtain a substantive examination of the case, but did not change the outcome. The Court rejected the arguments regarding Edge's usage, the role of Blink, the advantages of the Windows ecosystem, and how the Commission conducted the investigation. The judges clarified the Commission's obligations when a company attempts to demonstrate that the quantitative thresholds of the DMA do not reflect the real position of a service. The Commission must conduct the investigation with care and impartiality and take into account relevant information it has or could reasonably obtain, without limiting itself exclusively to the arguments of the investigated company. In the case of Edge, the Court found that the Commission's analysis went beyond the arguments presented by Microsoft. The integration of the browser into the company's ecosystem, the potential impact of artificial intelligence features, Edge's characteristics, and its importance for different categories of companies providing online services were evaluated. The court considered that the available information was sufficient for the conclusion that Edge did not represent an important gateway. The ruling thus maintains the situation established in February 2024: Microsoft is a gatekeeper for Windows, but Edge is not separately designated as a platform service that constitutes an important gateway in the sense of the DMA.

The Digital Markets Act imposes additional obligations on companies that control digital services sufficiently important to function as access points between companies and users. For browsers, such obligations may include facilitating the changing of default settings and providing a screen through which users can select other available services. The Court's ruling of September 2 is not necessarily the final stage of the case. The decision can be appealed to the Court of Justice within two months and ten days from notification, but any appeal can only concern legal issues.

https://2eu.brussels/en/news/microsoft-edge-remains-outside-special-rules-for-gatekeepers-after-eu-court-rejects-opera-action