On the gatekeeper qualification victory halved for Meta

For Meta, a half victory. Or a partial defeat. The European Court of Justice has in fact on the one hand confirmed the Commission's decision singling out Meta as gatekeeper, with a dense precipitate of consequences in terms of data transparency and opening to the digital market, with regard to the Messenger service, but denied the legitimacy of this qualification for Marketplace.

In September 2023, the Commission took the view that several services provided by Meta were to be regarded as separate core platform services, in particular Facebook as an online social network, Messenger as an interpersonal communication service and Marketplace as an online brokerage service. In the Commission's view, in fact, Meta met the quantitative thresholds of the Digital Markets Act, thus qualifying as a gatekeeper, and the services considered were to be important access points for user companies to reach their end users.

Meta had contested in particular the identification of Marketplace and Messenger as access points. With regard to Messenger, the Court confirmed that it constitutes an interpersonal communication service independent of the number of users, distinct from the social network Facebook. For the European judges, Messenger is offered through stand-alone applications and can be used independently of the social network and Meta promotes service-specific tools that allow businesses to interact with users. With regard to the number of users, the Commission acted correctly in the judgment by not considering only non-Facebook users.

Instead, the Commission erred in its assessment of Marketplace's qualification as a basic online intermediary service by referring only to data for the last three years prior to designation and without taking into account the changes made at the end of July 2023 and without explaining their impact on the conclusion that Marketplace enabled business users to offer goods or services to consumers, which is a necessary condition for the qualification of a service as an online intermediary service.