Microsoft Edge keeps its front-row seat on Windows without EU gatekeeper label

Microsoft Edge can remain outside the EU’s strict gatekeeper rules after judges found its Windows advantages had not translated into enough browser use.(CN) — A front-row seat on Windows is not enough to make Microsoft Edge a gatekeeper to the internet, the European Union’s second-highest court ruled Wednesday.The General Court of the European Union rejected Opera Norway’s attempt to overturn a European Commission decision that kept Edge outside the Digital Markets Act’s toughest rules. The Oslo-based browser maker argued Edge is an essential link between businesses and users, making Microsoft its gatekeeper.Edge passed the law’s user threshold, but actual use lagged far behind its biggest rivals. In December 2022, it generated 5.8% of European web page views across devices, compared with 59% for Google Chrome and 22% for Apple Safari.“In those circumstances, it is open to the commission to take account of the low scale of usage of a core platform service, which reflects its limited importance, in support of a finding that CPS does not constitute an important gateway,” the court said.Windows gave Opera its best argument. Microsoft preinstalls Edge, pins it to the taskbar, directs some links into the browser and has offered users preferred access to Bing Chat. Chrome still drew more traffic on Windows computers, where Edge handled only 20% to 30% of browsing.Microsoft’s wider ecosystem mattered only if it made Edge more powerful in practice. The commission could also consider the browser’s reliance on Blink, the Google-controlled engine that determines how web pages load and appear. Opera did not show that Microsoft-controlled Edge features significantly affected businesses trying to reach users.Applicable since May 2023, the Digital Markets Act seeks to stop the largest technology platforms from using entrenched positions to squeeze out rivals in the EU. The current gatekeeper list covers 23 services, including Chrome, Safari, Windows and LinkedIn. Edge, Bing, Microsoft Advertising and Apple’s iMessage passed the numerical thresholds but were exempted after further review.Friso Bostoen, assistant professor of competition law and digital regulation at Tilburg University, says the judgment adds to the act’s emerging “law of evidence,” allowing the commission to use evidence familiar from competition cases without mechanically examining every factor in the law.“From a policy perspective too, it doesn’t make sense to designate the third or fourth player in browsers,” Bostoen said. Some support from Windows, he adds, could help Edge compete with Chrome and Safari.Opera lost the case, but the judges confirmed that it had the right to sue. The commission had argued that Opera’s late, incomplete responses and failure to speak up when the inquiry was announced counted against allowing its challenge. The court disagreed, noting outside companies have few formal ways to participate in investigations.But what if the commission had never contacted Opera at all? “In my own view, it seems awkward that the enforcer picks the third parties that might access the judicial venues by appealing one of its decisions,” said Alba Ribera Martínez, assistant professor of law and technology at VU Amsterdam.Separately, Ribera Martínez says investigators may look beyond a company’s own arguments when deciding whether to grant an exemption.The commission did just that, questioning competitors, website owners and software developers and examining browser features and artificial intelligence. It did not have to review every factor used for services below the numerical thresholds, though readily available and relevant evidence may still require attention.Opera says its push for browser choice will continue. “The fight to give users more control over their own devices and to make their own decisions on what software to use, continues,” the company said in a statement, pledging to keep pressing regulators over competition, browser features and AI tools.Another Edge rival shares that concern. Mozilla, the organization behind Firefox, says Microsoft’s browser has grown more powerful since the commission’s review. “Today, there is an even stronger case for Edge to be designated under the DMA so Windows users can benefit from genuine browser choice, including through an effective choice screen,” the company said, citing Windows defaults, Edge’s reach and newer AI integrations.Microsoft and the commission both welcomed the outcome. “We welcome the court’s decision and are continuing to engage with the commission and industry at large to ensure Microsoft’s designated platforms comply fully with the DMA,” a Microsoft spokesperson said. The commission said the judgment fully upheld its decision and strengthened legal certainty around the act’s rebuttal process.Opera must pay the legal costs and has two months and 10 days after notification to appeal to the Court of Justice of the European Union, the bloc’s highest court, on questions of law only. Unless that court intervenes or new facts prompt another review, Edge keeps its front-row seat on Windows without the gatekeeper label.Courthouse News reporter Eunseo Hong is based in the Netherlands.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads