When the Rubber Hits the (Digital) Road: Developments Regarding the Digital Markets Act Since March 2024

By Alix Anciaux, Giancarlo Piscitelli, Thomas Verheyden, Jean Pettiaux, Xavier Bascompte, Beatriz Martos Stevenson, Miguel Frognier Pérez, Elinor du Parc, Areti Maria (Iria) Kitsou, Kristi Georgieva & Pauline Heingle on February 25, 2025

Since the obligations under the Digital Markets Act (“DMA”) started to apply to the first wave of gatekeepers in March 2024, there have been a number of important developments on the implementation and enforcement of the DMA by the Commission.[1] In particular, the Commission has: (i) adopted a second wave of designation decisions concerning Apple and Booking Holdings Inc. (“BHI”), while exempting other services of Apple, ByteDance, X Holdings Corp., and Microsoft; (ii) defended appeals before the European courts concerning a number of its designation and non-designation decisions; (iii) launched whistleblower tools for the DMA and the Digital Services Act (“DSA”); and (iv) opened non-compliance investigations against Meta, Alphabet, and Apple as well as specification proceedings into Apple’s compliance with DMA interoperability obligations.

Second wave of gatekeeper designations and exemptions

In a second wave of designation decisions, the Commission designated (i) Apple as a gatekeeper with respect to its iPadOS operating system, and (ii) BHI as a gatekeeper for its Booking.com online intermediation service. There are now seven undertakings designated as gatekeepers under the DMA—Apple, Alphabet, Meta, Amazon, Microsoft, ByteDance, and BHI—operating 24 core platform services (“CPSs”).[2] The Commission also accepted rebuttals from X, ByteDance, Apple, and Microsoft about seven of their services that, despite meeting the quantitative thresholds, were ultimately found not to be CPSs. These seven “exempted” services are: X, X Ads, iMessage, Edge, Bing, and Microsoft Advertising.[3] These exemptions join the earlier outright exemptions of Google’s Gmail, Microsoft’s Outlook.com, and Samsung’s Samsung Internet.[4]

Following the first round of designation decisions in September 2023, the Commission designated two additional gatekeepers in April and May 2024, Apple (in respect of iPadOS) and BHI (in respect of Booking.com), respectively. The two second-wave designation decisions followed different processes: BHI had notified the Commission of its potential status as a gatekeeper as it had now met the thresholds, while Apple was designated following a market investigation.

Apple’s iPadOS

On September 5, 2023, the Commission designated Apple as a gatekeeper with respect to its operating system iOS, its web browser Safari, and its online intermediation service App Store.[5] On the same day, the Commission opened a market investigation to assess whether the operating system iPadOS should be designated, despite it not meeting the quantitative thresholds laid down in Article 3(2) of the DMA, and whether it constituted an important gateway for business users to reach end users.[6]

Under Article 3(8) of the DMA, the Commission can designate as a gatekeeper any undertaking providing a CPS that meets each of the criteria laid down in Article 3(1) of the DMA, even if that undertaking does not satisfy each of the quantitative thresholds set out in Article 3(2) of the DMA.[7] The Commission has a statutory deadline of twelve months to conduct its investigation to examine whether such an undertaking should be designated as a gatekeeper.[8]

On April 29, 2024, the Commission concluded that iPadOS constitutes an important gateway for business users to reach end users and that Apple enjoys “an entrenched and durable position” with respect to iPadOS.[9] Following the criteria laid down in Article 3(8) of the DMA, the Commission considered: (i) the number of end users and business users of iPadOS; (ii) the degree to which these users are locked-in to iPadOS; (iii) the network effects exhibited by iPadOS; and (iv) the scale effects from which Apple benefits in relation to iPadOS.

Based on this assessment, the Commission found that, although the number of iPadOS end users did not reach the quantitative thresholds, it was close to doing so and was expected to rise in the near future. Notably, the Commission explained that the number of end users was significant in absolute, as well as in relative terms, compared to those of other operating systems for tablets, with 30–40% of tablets sold within the EU being iPads in 2022.[10] In addition, the Commission found that end users are locked-in to iPadOS because, (i) Apple leverages its large and closed ecosystem within which users enjoy a seamless experience across Apple’s own devices, while it denies or restricts interoperability with third-party products and services, and (ii) tablet owners tend to own and stick to one brand of operating system with relatively long replacement cycles.[11]

The Commission considered that business users are also locked-in to iPadOS due to: (i) the large and commercially attractive user base that can only be reached through iPadOS; (ii) the importance of iPadOS for certain activities (e.g., gaming, note-taking, and word processing); (iii) the cost of switching and multi-homing, in particular considering Apple’s proprietary programming tools and languages; and (iv) the fact that Apple facilitates cross-platform development between iOS and iPadOS.[12]

Finally, the Commission argued that iPadOS exhibits strong network effects because it benefits “from the positive feedback loop stemming from the increasing end user base drawn to the Apple OS ecosystem and the ensuing concentration of business users to reach this valuable customer population.”[13] It also explained that iPadOS benefits from strong economies of scale in a market where “providing or launching a new operating system […] entails very high development and other upfront costs.”[14]

This is the first designation decision that does not rely on the quantitative presumption, as set out in Article 3(2) of the DMA. Apple had until October 29, 2024 to ensure that its iPadOS CPS was fully compliant with the DMA. On November 4, 2024, Apple published its revised non-confidential summary of its DMA compliance report, including its compliance measures for iPadOS.[15] On the same day, the Commission announced that it intends to carefully assess whether Apple’s compliance measures, also with regards to iPadOS, comply with Apple’s DMA obligations.[16]

Booking.com

On May 13, 2024, the Commission designated BHI as a gatekeeper for its Booking.com online intermediation service. This decision was adopted 45 working days following BHI’s formal notification to the Commission that it met the DMA’s quantitative thresholds.[17] The Commission published its designation decision on October 14, 2024.[18]

The Commission concluded that Booking.com constitutes a single online intermediation service CPS irrespective of the different types of travel services it offers (i.e., hotels, flights, car rental, etc.), given that all such travel solutions are “used for the single purpose of intermediating travel services.”[19] The Commission also found that RentalCars.com forms part of the Booking.com CPS because it is offered to users as a conduit into the same travel services. Conversely, the Commission concluded that BHI’s other brands (Agoda, Priceline, Kayak, and OpenTable) constitute distinct online intermediation services, given that they are offered as distinct services and/or are used for different purposes by their respective users.[20] In the same vein, the Commission also concluded that Booking Network Sponsored Ads constitutes a distinct service from the Booking.com CPS, because the Commission considered it is offered as a distinct service, and is used for a different purpose by its users (i.e., promoting offers with the objective of increasing the business users’ likelihood of being booked).[21]

On November 13, 2024, six months after being designated as a gatekeeper, BHI published its first compliance report, describing the measures it has adopted to comply with the obligations of the DMA, which took effect on the following day.[22]

Exemptions from designations

Article 3(2) of the DMA provides quantitative thresholds that, if met, result in a rebuttable presumption in favor of designation as a CPS. Under Article 3(5) of the DMA, an undertaking can present, with its notification, substantiated arguments to demonstrate that it does not satisfy the requirements listed in Article 3(1) of the DMA and thus should not be designated, despite meeting all the thresholds set out in Article 3(2) of the DMA. The Commission has recently accepted such “rebuttals” for seven services, namely TikTok Ads, X, X Ads, iMessage, Bing, Microsoft Advertising, and Edge.[23]

TikTok Ads

On March 1, 2024, ByteDance notified the Commission of its potential status as gatekeeper with respect to its online advertising service TikTok Ads, while arguing that, despite meeting the quantitative thresholds laid down in Article 3(2) of the DMA, its service did not qualify as an important gateway between businesses and end users.[24]

ByteDance argued, among other points, that TikTok Ads: (i) had a small presence in the EU compared to the overall size of the online advertising market in the EU; (ii) had a smaller scale than Microsoft Advertising (which the Commission had previously decided not to designate) and possessed none of Microsoft’s “distinctive factors” (e.g., multiple advertisement properties and a “broad portfolio of CPS products in powerful positions”), while its scale was comparable to that of Samsung’s Internet Browser (which the Commission also declined to designate); (iii) faced several factors that limited its ability to drive monetization, such as a lack of first mover advantage; (iv) lacked lock-in effects on its end users or business users (who often multi-home); and (v) did not have an entrenched and durable position.[25]

On May 13, 2024, the Commission announced that it had not designated TikTok Ads as a CPS because of, inter alia, (i) its limited scale in terms of advertising spend (in light of the overall scale of online advertising services in the EU), and (ii) the fact that its highest spending advertisers only allocate a low share of their total advertisement spend to the service.[26]

X and X Ads

On March 1, 2024, X Holdings Corp. notified the Commission of its potential status as a gatekeeper for its online networking service, X, and its online advertising service, X Ads.[27] The notification was accompanied by two rebuttals where X Holdings Corp. argued that it should not be designated as gatekeeper given that neither of the two services, despite meeting the quantitative thresholds laid down in Article 3(2) of the DMA, qualified as an important gateway between businesses and end users.

X Holdings Corp. argued for both X and X Ads that each, respectively, (i) operates on a small, decreasing scale, and (ii) lacks any ecosystem benefits as the Musk Group does not have a digital platform ecosystem. It also presented arguments relating to (i) a lack of reflection of the market value of the Musk Group in the monetization potential or financial capacity of X and X Ads, and (ii) the irrelevance of the market value of the other companies belonging to the Musk Group as these are not operating within the EU internal market.[28] In addition, X Holdings Corp. argued that, (i) X does not constitute an important gateway for businesses to reach end users, and that (ii) X’s relative user engagement is low and declining.[29]

On May 13, 2024, the Commission announced its decision not to designate X Ads as a CPS and secondly, the opening of a market investigation to further assess the rebuttals submitted by X Holdings Corp. in respect of X.[30] Regarding X Ads, the Commission considered that X had provided sufficiently substantiated arguments demonstrating that X Ads did not constitute an important gateway between businesses and end users, in part because of: (i) its limited scale; (ii) its decline in advertising business users, pricing, and year-on-year EU revenue (going against the industry’s overall growth); and (iii) the availability of many alternatives to the main advertisers on X Ads.

On October 16, 2024, the Commission concluded its market investigation, finding that X did not qualify as an important gateway for business users to reach end users.[31]

iMessage

On July 4, 2023, Apple notified the Commission of its potential status as a gatekeeper with respect to its iMessage communication service. At the same time, Apple submitted rebuttals, arguing, inter alia, that: (i) due to its relatively small scale, iMessage does not constitute an important gateway for business users to reach end users in the EU; (ii) business users do not depend on iMessage to reach end users; (iii) iMessage does not exhibit strong network effects, as Apple does not benefit from any data-driven advantages in relation to iMessage, and iMessage is integrated within Apple’s Messages app together with SMS/MMS services; and (iv) iMessage is not designed, marketed, or used as a B2C service.[32]

On September 5, 2023, the Commission found that Apple’s rebuttals sufficiently substantiated and manifestly put into question the presumption of gatekeeper status, so as to warrant the opening of a market investigation to assess whether iMessage, despite meeting the quantitative thresholds of Article 3(2) of the DMA, did not constitute an important gateway for business users to reach end users.[33] On November 16, 2023, Apple appealed the Commission’s decision to open the market investigation, challenging the Commission’s characterization of iMessage as a Number-Independent Interpersonal Communication Services (“NI-ICS”). The case is now pending before the General Court.[34]

On February 12, 2024, the Commission closed its market investigation, concluding that Apple should not be designated as a gatekeeper with respect to iMessage, due to, (i) iMessage’s low usage intensity and end user numbers in the EU (especially when compared with those of competitors like WhatsApp and Facebook Messenger), and (ii) the limited importance of iMessage and its service Messages for Business as a B2C communication channel, given the latter’s “extremely limited” business user base in the EU and the low importance business users attach to both services as a way to reach customers.[35] On April 22, 2024, Apple also appealed the Commission’s decision to close its market investigation insofar as it characterized iMessage as a NI-ICS – the case is now pending before the General Court.[36]

Edge, Bing, and Microsoft Advertising

On July 4, 2023, Microsoft notified the Commission of its potential status as gatekeeper with respect to its (i) web browser Edge; (ii) online search engine Bing; and (iii) online advertising service Microsoft Advertising, while simultaneously submitting rebuttals for the three services.

Microsoft argued that Edge (i) has a relatively small scale, and (ii) can no longer influence the operations of business users to its advantage because business users did not optimize their websites specifically for Edge (following the decision to adopt Blink and discontinue its own browser rendering engine).
Microsoft also argued that Bing has a relatively small scale, which is very dependent on the scale of Edge and Microsoft Advertising, which (i) are themselves limited, and (ii) neither benefit from strong positive feedback loops, nor exhibit strong monetization potential.
With respect to Microsoft Advertising, Microsoft argued that: (i) it has a relatively small scale, which is very dependent on those of Bing and Edge, which are of a limited scale themselves; (ii) it does not enjoy strong data-driven advantages; (iii) its advertising tracking tool is used only by a minority of Microsoft Advertising’s business users; and (iv) the importance of Microsoft Advertising is decreasing, since advertisers are moving from desktop to mobile advertising, where Microsoft’s properties are less popular.[37]

On September 5, 2023, the Commission opened a market investigation to test Microsoft’s arguments.[38] On February 12, 2024, the Commission closed its market investigation and accepted Microsoft’s rebuttals,[39] owing to (i) Bing’s limited scale, intensity of use, and low advertising spend in the EU; (ii) Edge’s low scale of usage, its reliance on Chromium’s Blink browser engine instead of on a first-party engine, and the lack of impact from Microsoft’s platform ecosystem on Edge’s gateway status; and (iii) Microsoft Advertising’s limited scale in terms of overall usage, revenues, and number of business users, and the lack of sufficient scale effects derived from Microsoft’s platform ecosystem.

Appeals against Commission (non-)designation decisions

Since November 2023, the Commission has been defending its decisions before the European courts against appeals lodged by ByteDance, Meta, and Apple. One third party, Opera, has also challenged the Commission’s non-designation of Edge—the case is pending before the General Court.[40]

ByteDance

On July 3, 2023, ByteDance notified the Commission of its potential status as gatekeeper for its online social networking service, TikTok, while submitting a rebuttal request. ByteDance argued that, even if the quantitative thresholds were considered to be met (which ByteDance denied, as it argued that the threshold in Article 3(2)(c) of the DMA was not reached), ByteDance did not satisfy the gatekeeper requirements laid down in Article 3(1) of the DMA.

ByteDance argued, among other points, that TikTok: (i) is still building its customer base, so the company only meets the presumption from Article 3(2)(a) DMA on the basis of its global fair market value, which is driven by its China-focused business, with no connection to the EU; (ii) does not have an ecosystem that it could leverage and does not benefit from any significant network effects to lock in consumers and businesses; (iii) is a recent entrant and acts as a “challenger” in the market, and therefore invests in interoperability and facilitated multi-homing; (iv) faces a large number of competitors, both in advertising and video sharing; (v) has limited social networking offering for business users to reach end users; and (vi) has no advantages that would allow it to create an entrenched and durable position. ByteDance further claimed that: (i) the DMA should be aimed at levelling the playing field for challengers, including TikTok; (ii) TikTok’s designation would impose a significant compliance cost on the company; and (iii) that the Commission had failed to apply Article 3(5) of the DMA correctly.[41]

On September 5, 2023, the Commission rejected ByteDance’s arguments and designated the company as a gatekeeper with respect to its online social networking service TikTok.[42] On November 16, 2023, ByteDance lodged with the General Court, (i) an application for interim measures, and (ii) an application for annulment of the Commission’s decision.

In its application for interim measures, ByteDance argued that compliance with obligations under the DMA would significantly harm its business and its users. First, Article 15 of the DMA would require it to disclose detailed, highly strategic and confidential information regarding its commercial strategy, which would enable competitors and other third parties to obtain insight into TikTok’s business strategy in a way that would significantly harm its business and users. Second, compliance with the obligations under Articles 5 and 6 of the DMA would, (i) prevent it from innovating, offering new features and new products, or encouraging users to focus on its products, and (ii) force it to provide access to its services to all its competitors on equal terms. On February 9, 2024, the President of the General Court rejected ByteDance’s application to suspend the Commission’s designation decision. The General Court found that ByteDance had failed to establish that, as a result of the decision, its compliance with the DMA would lead to serious and irreparable harm, dismissing the company’s claims about both, (i) breach of confidentiality (resulting from Article 15 of the DMA), and (ii) greater barriers to entry or expansion in the EU (Article 5(2) of the DMA).[43]

In its application for annulment, ByteDance argued that the Commission had applied an incorrect legal standard when assessing ByteDance’s rebuttal arguments against the presumptions of Article 3(2) of the DMA. According to ByteDance, the Commission wrongly rejected rebuttal arguments, including that: (i) TikTok had been loss-making in the EU since its launch; (ii) it lacked network and lock-in effects; and (iii) its position had been contested by competitors such as Meta and Alphabet. ByteDance also argued that the Commission had, (i) failed to assess the evidence provided as a whole,[44] and (ii) had infringed ByteDance’s rights of defense and the principle of equal treatment by accepting similar rebuttal arguments by other gatekeepers.

On July 17, 2024, in the first substantive judgment from the European courts on the DMA, the General Court upheld ByteDance’s gatekeeper designation decision.[45] According to the General Court, ByteDance’s rapid growth and consolidation in the past five years contributes to showing how TikTok fulfills the qualitative criteria set out in Article 3(1) of the DMA. While, in 2018, TikTok was a challenger against established operators like Meta and Alphabet, its position consolidated rapidly afterwards, to the point of exceeding the DMA’s business user threshold and enjoying exponential growth in revenue and users.[46] The General Court agreed with the Commission that it was entitled to reject ByteDance’s arguments, as they were not substantiated enough so as to manifestly call into question the quantitative presumption laid down in Article 3(2) of the DMA. The General Court also rejected ByteDance’s arguments that the Commission misapplied the legal standard in the assessment of its arguments.[47] On September 26, 2024, ByteDance lodged a subsequent appeal against the General Court’s judgment, which is now pending before the Court of Justice.[48]

Meta

On November 15, 2023, Meta appealed the Commission decision designating the company as a gatekeeper with respect to, (i) its NI-ICS service, Facebook Messenger, and (ii) its online intermediation service, Facebook Marketplace. Meta also challenged the designation of its online social networking service, Facebook, insofar as the Commission found it to be distinct from Facebook Messenger.[49]

In its notification to the Commission, Meta had already argued that both Facebook Marketplace and Messenger did not constitute standalone CPSs but rather formed part of its online social networking service Facebook.[50] Meta is now advancing the same arguments on appeal. If successful, Meta’s Facebook Messenger and Facebook Marketplace would thus not be subject to the DMA’s obligations for CPSs. Meta’s appeal is currently pending before the General Court.

Apple

As noted above, Apple has appealed the Commission’s decisions both to open and to close its market investigation into iMessage, insofar as the Commission found that iMessage is a NI-ICS. Apple has also appealed its designation as a gatekeeper with respect to its online intermediation service App Store and its OS iOS. As part of this appeal, Apple has also contested the legal basis for Article 6(7)of the DMA, relating to interoperability, as inconsistent with the European Charter of Fundamental Rights and the principle of proportionality.[51] All of Apple’s appeals are currently pending before the General Court.

DMA/DSA Whistleblower Tools

To offer individuals a secure way to report violations, the Commission launched its Whistleblower Tools for the DMA and the DSA on April 30, 2024.[52] Both tools allow for identified and anonymous reporting of information, in any of the EU official languages, and in any format (e.g., reports, emails exchanges, data metrics, internal research, and decisions).

The DMA Whistleblower Tool aims to identify gatekeeper practices that violate the DMA and lists some examples,such as self-preferencing, the use of parity clauses or non-publicly available data of business users of gatekeepers, and the combination and cross-use of personal data without user consent.[53]
The DSA Whistleblower Tool targets practices of Very Large Online Platforms and Very Large Online Search Engines that infringe the obligations established in the DSA, including on content moderation, advertising practices, and the protection of children’s rights.[54]

While it remains to be seen how widely used the DMA Whistleblower Tool will be, it is not the only available option. Under Article 27 of the DMA, instances of non-compliance with the DMA can also be reported by any third party to the Commission or to the national competition authority of the Member State where that complainant is based. Similarly, under Article 53 of the DSA, recipients of services and their representatives have the right to lodge a complaint against providers of intermediary services about an alleged infringement of the DSA with the Digital Services Coordinator of the Member State where the recipient is located or established.

DMA non-compliance investigations and specification proceedings

On March 25, 2024, the Commission launched its first non-compliance investigations against three gatekeepers: (i) Meta (one investigation); (ii) Alphabet (two investigations); and (iii) Apple (two investigations). On June 24, 2024, the Commission opened a third non-compliance investigation against Apple. On September 19, 2024, the Commission also opened two specification proceedings into Apple’s compliance with DMA interoperability obligations.

Meta

In November 2023, Meta introduced a “pay or consent” model whereby EU users of Facebook and Instagram were offered the choice between, (i) paying a monthly subscription for advertisement-free versions of the services, or (ii) continuing to use the free version with personalized advertisements. On March 25, 2024, the Commission issued preliminary findings to Meta stating that its “pay or consent” model did not comply with Article 5(2) of the DMA because it curtails the end user’s right to consent and exercise free choice. The Commission took issue that end users were not offered a “less personalized but equivalent” alternative in line with the DMA’s requirements.[55] Shortly after, the European Data Protection Board issued a formal opinion on valid consent in the context of pay or consent models, calling for the implementation of an alternative that specifically does not use behavioral advertising.[56]

On November 11, 2024, Meta announced amendments to its “pay or consent” model by both, (i) substantially reducing the price for the advertisement-free version, and (ii) introducing a new, additional free option where users are shown “less-personalized” advertisements, including ones which are non-skippable.[57] The Commission has until March 25, 2025 to adopt a final decision in its non-compliance investigation.

Alphabet

On March 25, 2024, the Commission opened two non-compliance investigations to assess Alphabet’s compliance with the DMA rules applicable to its, (i) online intermediation service Google Play, and (ii) online search engine Google Search.[58]

In the first investigation, the Commission is examining, (i) whether charging an initial acquisition fee (and a fee for ongoing services provided by Google Play) over a period of two years is compatible with Article 5(4) of the DMA,[59] and (ii) whether Alphabet complies with the requirement that business users must be “free to promote and choose the distribution channel that they consider most appropriate” in view of the restrictions it imposes on developer ability to link out to offers existing outside of their app.

In the second investigation, the Commission is examining whether Alphabet’s display of Google search results may lead to self-preferencing in relation to Google’s vertical search services (e.g., Google Shopping; Google Flights; and Google Hotels) over similar rival services, in breach of Article 6(5) of the DMA.[60]

Apple

On the same day, the Commission opened two non-compliance investigations to assess Apple’s compliance with the DMA rules applicable to its, (i) online intermediation service App Store, and (ii) its operating system iOS.

In the first investigation, the Commission is examining whether Apple’s pre-existing business terms and new compliance measures comply with Article 5(4) of the DMA, which requires Apple to allow business users to communicate and promote offers to end users, and to conclude contracts with those end users, free of charge. In particular, the Commission is looking at: (i) Apple’s decision to charge a recurrent fee to certain users after such a contract with a third-party is concluded; (ii) Apple’s choice to maintain two parallel sets of business terms and forcing business users to choose between the ability to link out and the ability to use Apple’s in-app payment mechanism; and (iii) Apple’s lack of transparency and predictability for developers on the process to terminate their enrolment in the Apple Developer Program.[61]
The second investigation focuses on Apple’s compliance with Article 6(3) of the DMA. The Commission is examining whether Apple allows end users to uninstall software applications on iOS, to easily change default settings on iOS and to choose their default iOS web browser through a choice screen.[62]

On June 24, 2024, the Commission issued its preliminary findings that Apple’s App Store rules violate Article 5(4) of the DMA,[63] and opened a third non-compliance investigation against Apple to determine whether: (i) both sets of Apple’s business terms comply with the obligation to enable the effective use of alternative channels of distribution by app developers and end users (under Article 6(4) of the DMA); (ii) the fee structure of Apple’s new business terms, including its new Core Technology Fee, could deter business users from exercising the rights afforded by Articles 5(4), 5(7), and 6(4) of the DMA; (iii) subjecting the distribution of third-party app stores and sideloaded apps to Apple’s approval, and the criteria for such approval, comply with Article 6(4) of the DMA; (iv) the user journeys to install third-party app stores and sideload apps complies with Article 6(4); and (v) Apple’s Core Technology Fee complies with the free interoperability obligation of Article 6(7) of the DMA.[64]

Finally, on September 19, 2024, the Commission opened two specification proceedings to assess Apple’s measures for compliance with the interoperability obligations set out in Article 6(7) of the DMA.[65] Under Article 8(2) of the DMA, the Commission can specify the measures a gatekeeper must take to comply with the DMA. This is the first time that the Commission has used this tool. The first specification proceedings focus on Apple’s process for handling interoperability requests from app developers, while the second proceedings focus on how Apple should provide effective interoperability with certain iOS connectivity features and functionalities used by connected devices, such as smartwatches, headphones, and VR headsets.

On December 18, 2024, the Commission adopted its preliminary findings in the two respective proceedings, setting out in both the proposed measures that Apple should implement. These proposed measures were open for public consultation until January 9, 2025. The Commission now has three months to conclude the specification proceedings (by adopting an implementing act which details the final measures Apple will need to implement to ensure compliance).[66] In the meantime, the Commission retains the power to adopt a non-compliance decision and to impose fines or periodic penalty payments on Apple.

What next for DMA enforcement?

Along with potential new gatekeeper decisions and the resolution of ongoing investigations and court cases, the future of the DMA will depend on how the new Commission approaches DMA enforcement, while navigating potential tensions with the new Trump administration.

In the Mission Letter to the new Executive Vice-President for Clean, Just, and Competitive Transition Teresa Ribera Rodríguez, President of the European Commission Ursula von der Leyen sets out her priorities for the new Commission and specifically calls on Ribera to “address the challenges and dynamics of digital markets, including platform economies and data-driven business models” and to “ensure the Commission takes rapid and effective enforcement actions under the Digital Markets Act.”[67] The letter echoes the support for effective DMA enforcement expressed in Mario Draghi’s September report on the future of European competitiveness,[68] and Ribera’s commitment to “push for a vigorous enforcement of the DMA.” The new Commissioner will reportedly focus on three priorities: (i) opening up “closed” ecosystems; (ii) giving consumers “choice”; and (iii) ensuring that data “belongs to those who generate it.”[69]

[1] Regulation (EU) 2022/1925 of the European Parliament and of the Council of September 14, 2022, on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act), OJ 2022 L 265/1.

[2] The Commission explains that core platform services are those services in the digital economy that “exhibit certain features and where absent regulatory intervention the identified failures would effectively remain un-addressed.” The DMA covers ten categories of CPSs: online intermediation services, online search engines, online social networking services, video-sharing platform services, number-independent interpersonal communications services, operating systems, web browsers, virtual assistants, cloud computing services, and online advertising services.

[3] Article 3(1) of the DMA established cumulative requirements for an undertaking to be designated as a gatekeeper: “(a) it has a significant impact on the internal market; (b) it provides a core platform service which is an important gateway for business users to reach end users; and (c) it enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future.” These requirements are presumed to be met if the undertaking exceeds the thresholds set out in Article 3(2) of the DMA.

[4] In September 2023, the Commission exempted these three services “outright” (i.e., without first opening a market investigation). See Commission Press Release, “Digital Markets Act: Commission designates six gatekeepers,” September 6, 2023, available here.

[5] Commission Decision C (2023) 6100 of September 5, 2023, designating Apple as a gatekeeper pursuant to Article 3 of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector.

[6] Commission Decision C (2024) 2500 of April 29, 2024, closing the market investigation opened by Decision C(2023) 6076, pursuant to Article 17 of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector and amending Commission Decision C(2023) 6100 of September 5, 2023, designating Apple as a gatekeeper pursuant to Article 3 of that Regulation (“iPadOS Designation Decision”).

[7] Article 3(1) of the DMA established cumulative requirements for an undertaking to be designated as a gatekeeper: “(a) it has a significant impact on the internal market; (b) it provides a core platform service which is an important gateway for business users to reach end users; and (c) it enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future.” These requirements are presumed to be met if the undertaking exceeds the thresholds set out in Article 3(2) of the DMA.

[8] The twelve-month statutory deadline is laid out in Article 17 of the DMA.

[9] See iPadOS Designation Decision, and also Commission Press Release IP/24/2363, “Commission designates Apple’s iPadOS under the Digital Markets Act,” April 29, 2024, available here.

[10] iPadOS Designation Decision, paras. 33–36.

[11] iPadOS Designation Decision, paras. 37–66.

[12] iPadOS Designation Decision, paras. 67–91.

[13] iPadOS Designation Decision, para. 93.

[14] iPadOS Designation Decision, para. 105.

[15] See Apple’s Non-Confidential Summary of DMA Compliance Report (November 1, 2024), available here.

[16] See Commission Daily News of November 4, 2024 MEX/24/5662, available here.

[17] See Summary of Commission Decision of May 13, 2024, relating to a decision pursuant to Article 3 of Regulation (EU) 2022/1925, OJ 2024 C/4360.

[18] See Commission Decision of May 13, 2024, designating Booking Holdings Inc. as a gatekeeper pursuant to Article 3 of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector.

[19] See Summary of Commission Decision of May 13, 2024, relating to a decision pursuant to Article 3 of Regulation (EU) 2022/1925 (C(2024) 3176 final), para. 8.

[20] Ibid., see para. 7.

[21] Ibid., see para. 9.

[22] Booking Holdings, “Booking Holdings Inc.’s Digital Markets Act Compliance Report,” November 13, 2024, available here.

[23] While the Commission accepted the rebuttals for TikTok Ads and X Ads without further assessment, it carried out market investigations to test the rebuttals for X, iMessage, Bing, Microsoft Advertising, and Edge.

[24] Commission News Announcement, “Booking, ByteDance and X notify their potential gatekeeper status to the Commission under the Digital Markets Act,” March 1, 2024, available here.

[25] Commission Letter concerning ByteDance’s notification under Article 3(3) of Regulation (EU) 2022/1925, available here, paras. 41–47.

[26] Commission Letter concerning ByteDance’s notification under Article 3(3) of Regulation (EU) 2022/1925, available here.

[27] Commission Press Release, “Booking, ByteDance and X notify their potential gatekeeper status to the Commission under the Digital Markets Act,” March 1, 2024, available here.

[28] Commission Letter concerning X Holdings Corp’s notification under Article 3(3) of Regulation (EU) 2022/1925, available here, paras. 79–81.

[29] Commission Decision C (2024) 3117, opening a market investigation pursuant to Article 16(1), in conjunction with Article 3(5) and Article 17(3), of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector, paras. 6–7.

[30] Commission Letter concerning X Holdings Corp’s notification under Article 3(3) of Regulation (EU) 2022/1925, available here.

[31] Commission Press Release MEX_24_5324, “Commission concludes that online social networking service of X should not be designated under the Digital Markets Act,” October 16, 2024, available here. The public version of the decision is not yet available.

[32] Commission Decision C (2024) 785, closing the market investigation opened by Decision C (2023) 6077, pursuant to Article 17 of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector, paras. 16–23.

[33] Commission Decision C (2023) 6077 of September 5, 2023, opening a market investigation pursuant to Articles 16(1) and 17(3) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector.

[34] Apple v. Commission (Case T1079/23), action brought on November 16, 2023.

[35] Commission Decision C (2024) 785, closing the market investigation opened by Decision C (2023) 6077, pursuant to Article 17 of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector, paras. 24–37.

[36] Apple and Apple Distribution International v. Commission (Case T-214/24), action brought on April 22, 2024.

[37] Commission Decision C (2023) 6078 of September 5, 2023, opening a market investigation pursuant to Articles 16(1) and 17(4) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector, paras. 4–11.

[38] Ibid.

[39] Commission Decision C (2024) 806 of February 12, 2024, closing the market investigation opened by Decision C (2023) 6078, pursuant to Article 17 of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector.

[40] Opera Norway v. Commission (Case T-357/24), OJ 2024 C/5640, action brought on July 11, 2024.

[41] Commission Decision C (2023) 6102 of September 5, 2023, designating ByteDance as a gatekeeper pursuant to Article 3 of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector.

[42] Ibid., paras. 97–119.

[43] See Order of the President of the General Court of February 9, 2024 (Case T-1077/233 R) EU:T:2024:94. See also Cleary Antitrust Watch Blog, “The General Court Rejects ByteDance’s Application for Interim Measures,” February 9, 2024, available here.

[44] ByteDance Ltd v. Commission (Case T-1077/23) EU:T:2024:478, hearing report of Judge Rapporteur Kornezov, paras. 28–38.

[45] ByteDance Ltd v. Commission (Case T-1077/23) EU:T:2024:478 (“ByteDance Judgment”). See also Court of Justice Press Release 114/24, “Digital Markets Act: The General Court dismisses the action brought by ByteDance (TikTok) against the decision of the Commission designating it as a gatekeeper,” July 17, 2024, available here.

[46] ByteDance Judgment, para. 316.

[47] ByteDance Judgment, paras. 36–72.

[48] ByteDance Ltd v. Commission (C-627/24 P), action brought on September 26, 2024, available here.

[49] Meta Platforms v. Commission (Case T-1078/23), action brought on November 15, 2023, available here.

[50] Commission Decision C (2023) 6105 of September 5, 2023 designating Meta as a gatekeeper pursuant to Article 3 of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector, paras. 157–163 and 234–245.

[51] Apple v. Commission (Case T-1080/23), action brought on November 16, 2023, available here.

[52] Commission Press Release, “Commission launches Whistleblower Tools for Digital Services Act and Digital Markets Act,” April 30, 2024, available here.

[53] See Commission DMA Whistleblower Tool, available here.

[54] See Commission DSA Whistleblower Tool, available here.

[55] Commission Decision C (2024) 2052 of March 25, 2024 opening proceedings pursuant to Article 20(1) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector.

[56] European Data Protection Board Opinion 08/2024 on Valid Consent in the Context of Consent or Pay Models Implemented by Large Online Platforms, available here.

[57] See Meta, “Facebook and Instagram to Offer Subscription for No Ads in Europe,” November 12, 2024, available here.

[58] Commission Decision C (2024) 2055 of March 25, 2024 opening a proceeding pursuant to Article 20(1) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector; and Commission Decision C (2024) 2053 of March 25, 2024 opening a proceeding pursuant to Article 20(1) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector.

[59] Article 5(4) of the DMA requires gatekeepers to allow app developers to “steer” consumers to offers outside the gatekeepers’ app stores, free of charge.

[60] Article 6(5) of the DMA prohibits gatekeepers from treating more favourably, in ranking and related indexing and crawling, its first-party services and products compared to similar third-party services or products.

[61] Commission Decision C (2024) 2056 of March 25, 2024 opening a proceeding pursuant to Article 20(1) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector, paras. 9–10.

[62] Commission Decision C (2024) 2060 of March 25, 2024 opening a proceeding pursuant to Article 20(1) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector, para. 10.

[63] Commission Press Release IP/24/3433, “Commission sends preliminary findings to Apple and opens additional non-compliance investigation against Apple under the Digital Markets Act,” June 24, 2024, available here.

[64] Commission Decision C (2024) 4509 of June 24, 2024 opening a proceeding pursuant to Article 20(1) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector, paras. 15–20.

[65] Commission Decision C (2024) 6663 of September 19, 2024 opening a proceeding pursuant to Article 20(1) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector and Commission Decision C (2024) 6661 of September 19, 2024 opening proceedings pursuant to Article 20(1) of Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector.

[66] Commission Press Release, “Commission seeks feedback on the measures Apple should take to ensure interoperability under the Digital Markets Act,” December 19 2024, available here.

[67] European Commission, Mission Letter to Teresa Ribera Rodríguez, Executive Vice-President for a Clean, Just, and Competitive Transition, available here, p. 7.

[68] Mario Draghi, “The future of European competitiveness,” September 2024, available here, Part B, pp. 302–303.

[69] European Parliament, Mission letter to Teresa Ribera Rodríguez, Executive Vice-President-designate for a Clean, Just, and Competitive Transition, available here, pp. 4, 11, and 13.