Rebutting the gatekeeper status – what does it take?

platforms, dma, gatekeepers, digital markets act, apple, google, microsoft, smasung

The deadline for appeals on the gatekeeper designation under the DMA is nearing its end.  Since the DMA imposes gatekeepers with demanding obligations, it is only natural that the potential subjects of this regulation will attempt to contest this status. What remains, however, to be clarified is what prospective gatekeepers can put forward as evidence to avoid being designated as one and how EU Courts should deal with such appeals to keep a clear division between the DMA and art. 102 TFEU?

Getting  the gatekeeper status

The status of gatekeeper under the DMA is defined as an undertaking that provides a core platform service included in the list of art. 2 of the DMA and meets the market power of art. 3(1) of the DMA according to which:

  • (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.


A platform undertaking that offers a listed core platform service under art. 2 is presumed to meet the market power threshold of art. 3(1) when it meats the quantitative thresholds of art. 3(2) of the DMA. When these thresholds are not met, the Commission can still designate a platform undertaking as a gatekeeper while relying on additional sources and types of evidence included in art. 3(8) of the DMA.

Earlier this September, the Commission designated six gatekeepers: Alphabet, Amazon, Apple, ByteDance, Meta, and Microsoft. The gatekeeper status of these entities covers the 22 core platform services they provide. For now, all of the designation decisions were made based on the rebuttable presumption of the art. 3(2) quantitative thresholds. Accordingly, for the time being, there are no designations of platform based on the alternative route of art. 3(8) DMA.

In the designation process, alleged gatekeepers that meet the art. 3(2) of the DMA can attempt to rebut their status according to art. 3(5) of the DMA. According to this provision :

The undertaking providing core platform services may present, with its notification, sufficiently substantiated arguments to demonstrate that, exceptionally, although it meets all the thresholds in paragraph 2, due to the circumstances in which the relevant core platform service operates, it does not satisfy the requirements listed in paragraph 1.

For this presumption to be rebutted, the alleged gatekeeper must provide information that manifestly calls into question the presumptions set out in art. 3(2) of the DMA. When that happens, the Commission can decide to open a market investigation in accordance with art. 17 of the DMA or decide that the gatekeeper status has been sufficiently rebutted.

The threshold for rebutting the presumption, as indicated in art. 3(5) of the DMA seems relatively high to meet. One may question, however, whether this standard of proof is on the same footing with other presumptions in EU (competition) law. Providing evidence that manifestly calls into question the validity of a presumption indicates that evidence of factors that have a mitigating effect on market power will not, as such, suffice. Although this high threshold is understandable for the purposes of the DMA, it risks making the option of rebuttals more theoretical than practical.

Fortunately, it seems that the Commission is aware of this risk and how this could undermine the legitimacy of the DMA, as the rebuttal option has been applied successfully from the start. This happened in the case of Samsung and its native web browser and the email services of Microsoft (Outlook) and Alphabet (Gmail), which were relieved from the gatekeeper status despite meeting the thresholds of art. 3(2) DMA. Furthermore, the Commission also made use of the possibility of opening a market investigation in the case of Microsoft’s Bing and Advertising and Apple’s iMessage. Consequently, challenging the gatekeeper status seems possible, albeit restricted to limited conditions.

Rebutting the gatekeeper status

When going through the designation decisions of the Commission, it becomes clear what types of evidence are needed to rebut the presumption of art. 3(2) is quite unique. It appears that the evidence provided should show that the entity fails to meet the rationale of what it means to be a gatekeeper. This would mean the (total) absence of control over the flow of interactions between the consumer and/or business customer groups of the platform services.

This is the case when there is almost seamless interoperability across core platform services, such as email services provided by Microsoft with its Outlook. Similarly, this can be the case where the platform service has an artificially inflated number of users but is not truly used by them in practice, as is the case with Samsung’s web browser, which is installed on all of its smart mobile devices but hardly utilized in practice. These situations are evidently very exceptional and should rightfully be excluded from the scope of the DMA. Nevertheless, this indicates what it takes to successfully rebut the gatekeeper status- namely, you need to have a platform that does not utilize or is not capable of utilizing the gatekeeping potential of its (intermediary) services. The exceptional nature of this aspect can hardly be overstated since a great deal of ‘platform logic’ is to capture and trade in access between consumers and business customers. This is the essence of platform value creation. Where normal undertakings create value linearly, platforms do so triangularly by bringing together multiple customer groups (i.e., consumers and business customers) and ‘selling’ this intermediation to one or more of these groups. Doing so in practice requires some degree of control over the mutual access that such customer groups have to each other. Such control can be achieved in various ways, depending on the services offered by the respective platform, but it is essential for the respective platform to be able to monetize its services. Consequently, escaping the prospect of designation at the notification phase is open for core platform services in exceptional circumstances that fail to deliver such structures’ intended commercial and strategic advantages. This can be seen as a concentration cleared under the EUMR simplified procedure; it needs to be notified due to the jurisdictional thresholds but poses no threat from a competition policy perspective. Unlike simplified procedures, however, such cases under the DMA will be sporadic.

Alternatively, and perhaps even rarer, the concerned platform can indicate that its core platform service does not fulfill the envisaged label of the Commission as defined in art. 2 of the DMA. This is a matter of legal interpretation that goes into the heart of the scope of the DMA. Such arguments will challenge the scope of each core platform service as included in art. 2 of the DMA, which will inevitably lead to interpretations by EU Courts in the long run. Despite their rarity, such cases will have an unmistakable impact on the scope of application of the DMA. These will determine which core platform services fall within the existing formulation of art. 2 of the DMA. In practice, the impact of such cases could work both ways. Interpretations by EU Courts can narrow the categories of core platform services when excluding specific types of services but also enlarge such categories in ways that would otherwise require an update of the DMA. This can occur, for example, when a specific category of core platform services includes not only the specifically mentioned categories but also platform services that are commercially and functionally comparable. The first case where this type of argument may find its way to the doorsteps of EU Courts is that of Apple, which brought such arguments in the case of iMessage. According to Apple, iMessage does not fall within the ambit of the services mentioned in Art. 2 of the DMA since it does not meet the definition of the various core platform services it could qualify for.

Where evidence is not clear enough for a rebuttal at the notification phase, the best attainable result prospective gatekeepers can attain is to get the Commission to open a market investigation. At this stage, of which there is still no final example, the Commission will further evaluate the market conditions in which the core platform service of the alleged gatekeeper is offered. Despite the more elaborate research, the outcome should address the abovementioned aspects. Accordingly, the market investigation should show that the respective core platform service falls within the ambit of art. 2 of the DMA (if the matter is challenged) and a quasi-exclusive control over market access concerning consumers and business customers.

Narrowing the gatekeeper status

Another alternative to rebutting the gatekeeper status is to narrow it in scope. As internet-supported services can run on multiple types of devices these days (e.g., smartphones, tablets, smartwatches), a prospective gatekeeper can try to restrict its gatekeeper status to only one of these platforms. For example, web browsers are currently installed on multiple types of devices; however, the relevance of this product may not be equal across all devices, and thus, neither is the status of the gatekeeper. A web browser is, for example, much more likely to be used on a smartphone than in the smart interface of a car. While such ‘hair-splitting’ would be possible in the case of a traditional market definition under the scope of EU competition law, it is unclear to what extent this would be possible under the DMA. Section D, under 2(c)(i) of the Annex to the DMA, gives the impression that some differentiation may be made in certain situations, and its wording even resembles traditional ‘market definition language’ concerning product/service characteristics. Nevertheless, since part of the idea behind the DMA was to get away from the difficulties of the market definition, it is hard to tell how this will evolve. Luckily, the wait will not be too long as this approach to narrowing the gatekeeper status has been taken by Apple for its various versions of OS, its web browser Safari, and its App Store. The Commission also seems to take this possibility seriously as it launched a market investigation to determine how to deal with iPadOS. The attempt to narrow the scope of the gatekeeper status is an understandable approach for prospective gatekeepers—the more narrow the scope, the fewer changes that need to be implemented. One can even say it is pretty reasonable for this approach to be accepted by the Commission as certain services are not equally important across various platforms and thus do not necessarily need to be subject to identical obligations unconditionally. At the same time, this approach should not become a loophole to escape the gatekeeper status by pushing artificial delineations of core platform services.

DMA rebuttals are not dominance rebuttals  

Although both the concept of dominance and that of gatekeeper are intended to indicate a degree of market power possessed by the concerned undertaking, the two mustn’t be mixed up at the stage of appeal. It is essential to acknowledge that the two concepts are not synonyms, as they are part of different, albeit related, legal frameworks. These concepts are, therefore, not intended to indicate the same degree of market power nor concern the same kind of market conditions. On the contrary, the gatekeeper concept is intended to work as a lower threshold of market power than dominance. That is the entire rationale behind the DMA, which is intended to offer an avenue for more timely legal intervention. In this regard, it is essential to distinguish the relevance of the evidence submitted to show mitigating circumstances concerning market power. Accordingly, evidence of multi-homing, for example, should not carry the same weight in the context of both procedures. While multi-homing can reduce the prospect of monopoly power for a platform, it does not mean the same platform cannot be a gatekeeper. Put in simple figures, when multihoming prevents a platform from going beyond a 30% market share, it does not mean the same platform should not be considered a gatekeeper. After all, the concerned platform has a decisive impact on market access in a given (relevant) market. This has also been mentioned in the context of the designation decisions. The presence of multi-homing, as such, will not suffice to rebut the gatekeeper status, and rightfully so.  Consequently, unlike in the case of dominance, there can be more than one gatekeeper in a given (relevant) market. Where platforms have been found to be dominant in the past (and present) with respect to a core platform service, this can, however, be a clear indication that the same platform is also a gatekeeper under the scope of the DMA.

Despite the differences between the concepts, what should be done similarly in both cases is judicial review. Since the concept of gatekeeper is founded on complex economic analysis, it should also be treated as such. Therefore, similar to the market definition, EU Courts should avoid replacing the Commission’s analysis with their own. The review should be limited to assessing whether the Commission’s conclusion was based on all the relevant information available and put forward by the concerned party.


The first series of attempted rebuttals of the gatekeeper status is already on its way.  How many of these will be successful remains to be seen. What is clear for now is that the Commission takes the possibility of rebuttals and narrowing of scope quite seriously. At this stage of the designation, more lenience and flexibility may have been displayed than the entire line of art. 102 TFEU case law. As new appeals will follow in the future and eventually make their way to EU Courts, it is essential that these follow a similar approach to judicial review to the current approach on art. 102 TFEU case law while not mixing up the different degrees of market power and corresponding evidence needed for these two separate frameworks.



Daniel Mandrescu

Blog editor

Assistant Professor EU competition law, Europa Institute, Leiden University

>> Daniel’s CoRe blog posts >>

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