The EU General Court issued its judgment today in Case T-357/24, upholding the European Commission’s 2024 decision to grant Microsoft an exceptional exemption from gatekeeper designation for its web browser, Edge, despite all the relevant quantitative thresholds for designation being met, thereby maintaining the status quo. The ruling nevertheless implicitly confirms that the case for designation of Edge is stronger today than ever, and that it is imperative for the European Commission to reassess Edge’s gatekeeper status based on current facts and evidence.
Users deserve the freedom to choose their PC browser and for that choice to be respected. Today, PC users are too often pushed by Microsoft into using a browser they didn’t freely choose and is not best suited for their needs. A key part of that is the de facto exclusive preinstallation of Edge on the hundreds of millions of Windows devices in Europe: Microsoft’s ‘portfolio-wide’ Jumpstart programme prevents Windows PC manufacturers from preinstalling alternative browsers on any of their devices. The industry has argued for years that Edge’s status under the DMA needed a fresh look. It was in that context that BCA member Opera filed its application before the General Court.
Article 6(3) of the Digital Markets Act (“DMA”) offers the possibility of unlocking a fairer and more contestable browser market on PCs. While various obligations already apply to Windows PCs thanks to the designation of Microsoft for its Windows operating system (“OS”), there is currently no browser choice screen on the hundreds of millions of Windows PCs in Europe. This is because although the Windows OS has been designated under the DMA, Edge was exempted. This contrasts with iOS/iPadOS and Android devices where users are offered a browser choice screen, making Windows PCs an outlier in Europe. PCs remain essential for work, education and enterprise and this omission has significant implications for how PC users work, study and otherwise browse the web.
Today’s judgment, which is subject to appeal, maintains the status quo. While the court upholds the European Commission’s February 2024 decision, it also implicitly confirms that the case for designation of Edge is stronger than ever. The Commission’s investigation was carried out three years ago using data available at the time, some of which relating to 2022. The digital landscape has moved substantially since then, and any credible analysis of gatekeeper status must reflect today’s market realities, not a snapshot from a different era of the web.
Consistent with Article 4 DMA, the BCA urges the Commission as a matter of urgency to take a fresh look at Edge’s gatekeeper status based on current facts and evidence, which includes taking into account Edge’s user numbers in the EU and its significant and growing shares, in particular on Windows PCs. The European Commission would then need to decide whether to extend the same freedom of choice that hundreds of millions of mobile users across Europe already benefit from to Windows – both the EU’s and the world’s most prevalent PC OS.
The BCA looks forward to supporting the European Commission in any reassessment of Edge’s gatekeeper status.