On 20 October 2026, the European Commission published the non-confidential version of its decision of 9 June 2026 in Case AT.41034 – Exclusion of AI competitors from WhatsApp (C(2026) 4020 final). By that decision, the Commission imposed interim measures on Meta Platforms, Inc. pursuant to Article 8 of Council Regulation (EC) No 1/2003. Meta is required to restore access to the WhatsApp Business API for third-party AI assistants on the terms in force prior to 15 October 2025, under which replies to user-initiated messages were free of charge.
For providers of AI assistants and other services distributed via WhatsApp, the decision raises practical questions concerning the scope of the access they may claim, the fees Meta may lawfully charge and the means of enforcing their position independently of the Commission. The following analysis focuses on enforcement before the German courts.
Key points:
- Meta must restore access for third-party general-purpose AI assistants on the terms applicable before 15 October 2025. The measures remain in force for a maximum of three years.
- The Commission applies the standard set by the Court of Justice of the European Union (CJEU) in Android Auto (C‑233/23): where a dominant undertaking has developed infrastructure with a view to its use by third parties, access need not be indispensable.
- An access fee may be tantamount to a refusal of access. Any fee must be cost-based, and the dominant undertaking must substantiate the costs on which it relies.
- Private enforcement is available independently of the Commission. Article 102 TFEU is directly applicable, and providers may bring stand-alone actions for injunctive relief and damages before the German courts.
- The first German judgment on the private enforcement of the Digital Markets Act declined to confine an injunction to German territory. The same reasoning applies to Article 102 TFEU.
The Commission’s decision
Meta opened the WhatsApp Business API to undertakings of all sizes in May 2022. From 2023 onwards, providers of general-purpose AI assistants used the interface to reach end users, including OpenAI, Microsoft and Perplexity as well as smaller providers operating exclusively through WhatsApp. Until October 2025, Meta classified their replies to user messages as free service messages.
With effect from 15 October 2025, Meta excluded “AI Providers” from the API, a category it reserved the right to define at its sole discretion. Meta’s own assistant, Meta AI, remained integrated into WhatsApp. Following the opening of proceedings by the Commission, Meta readmitted the providers from 6 March 2026, but charged each reply at the rate applicable to marketing messages, without any cap and subject to unilateral amendment.
The Commission takes the view that both the exclusion and the fee constitute, prima facie, an abuse of a dominant position within the meaning of Article 102 TFEU. It ordered Meta to:
- restore access on the terms applicable before 15 October 2025;
- permit excluded providers to notify their users of their renewed availability on WhatsApp;
- refrain from any conduct having the same or an equivalent object or effect, including retaliatory measures.
The measures apply for three years from Meta’s notification of compliance, or until the Commission adopts a final decision on the merits or closes the investigation, whichever occurs first. Failure to comply exposes Meta to periodic penalty payments of up to 5 % of its average daily turnover.
Implications for access and fees
Beneficiaries. The order covers third-party providers of general-purpose AI assistants. Its wording does not confine access to providers that were already active on WhatsApp; new entrants may therefore rely on it as well. Services using AI merely on an ancillary basis were never excluded. Providers with mixed offerings should bear in mind that the decision does not define the boundary between the two categories.
Permissible fees. For the duration of the measures, Meta may not charge for replies to user-initiated messages. Beyond that period, the decision sets out a standard that will govern any future fee. In line with Android Auto, a dominant undertaking may claim appropriate remuneration, provided that it is fair, proportionate and linked to actual costs. The Commission extends this standard from the costs of developing access to the ongoing costs of integration, operation and security. We have discussed the Android Auto judgment in detail in an earlier article.
Meta did not disclose any cost data. The Commission therefore relied on its own benchmarks: cloud egress fees, IP transit prices and the published operating costs of the Signal messenger. Measured against the Signal benchmark, Meta’s average fee of approximately EUR 0.074 per message exceeded the cost of delivery more than 700-fold. The Commission also rejected the marketing tariff as a point of reference, since AI replies respond to user requests and the tariff varied by a factor of almost three between Member States without any corresponding difference in cost.
Providers may therefore contest any future fee on two grounds: Meta must substantiate its costs, and, absent such evidence, external benchmarks may show the fee to be excessive.
Private enforcement before the German courts
Private enforcement does not depend on the Commission’s proceedings. Article 102 TFEU is directly applicable, and providers may bring stand-alone actions before national courts irrespective of whether the Commission acts, how long its investigation takes or how it ultimately decides. The interim measures and private claims pursue different ends: the Commission protects competition in the public interest and enforces its decision by means of periodic penalty payments, whereas private actions allow providers to secure access, cessation and compensation in their own right and on their own timetable. Providers may pursue both routes in parallel.
Remedies under German law
- Injunctive relief. Under Section 33 of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB), any competitor or other market participant affected by an infringement of Article 102 TFEU may claim removal and cessation of the infringement. The claim extends to infringements that are merely imminent.
- Preliminary injunctions. German courts may grant preliminary injunctions on the basis of prima facie evidence. Applicants must act without delay, as the courts assess urgency independently. The Commission’s findings on the risk of serious and irreparable harm support such an application but do not replace the applicant’s own showing.
- Damages. Section 33a GWB provides for compensation, including for losses incurred during the exclusion since October 2025.
- Economic dependency. Section 20(1) GWB prohibits unfair impediment by undertakings on which others depend, including intermediaries on multi-sided markets. The decision documents such dependency in detail for providers that reach their users predominantly or exclusively through WhatsApp. Unlike Article 102 TFEU, this provision does not require a dominant position.
- Specialised courts. Competition claims are assigned to specialised chambers at designated regional courts, irrespective of the value in dispute.
Legal effect of the Commission decision
The interim measures decision is not binding on German courts. Section 33b GWB binds courts only to a final decision establishing an infringement, whereas the present decision contains a prima facie finding only. Under Article 16(1) of Regulation (EC) No 1/2003, however, national courts must avoid decisions that would conflict with a decision contemplated by the Commission in proceedings it has initiated. In addition, the detailed findings on market definition, dominance and costs may be relied upon to substantiate a provider’s claims.
Choice of defendant and forum
The decision is addressed to Meta Platforms, Inc., a company established in the United States. Where the defendant is domiciled outside the EU, German courts determine their international jurisdiction under national law, in particular by reference to the place where the harmful conduct produces its effects. Whether a European Meta entity is an appropriate defendant depends on its role in providing the API. The choice of defendant thus warrants careful consideration at the outset.
Territorial scope of injunctions
In its judgment of 12 August 2025 (Case 12 HK O 32/24), the Regional Court of Mainz (Landgericht Mainz) declined to confine an injunction under the Digital Markets Act to German territory. The court relied on the EU-wide effect of the DMA and on the defendant’s responsibility for the services concerned throughout Europe. The judgment is under appeal before the Higher Regional Court of Koblenz (Oberlandesgericht Koblenz). We examine the private enforcement of the DMA before German courts, including the Mainz judgment, in a separate article.
This reasoning applies equally to Article 102 TFEU. The prohibition applies uniformly throughout the European Union, and the Commission’s interim measures extend to the entire EEA. An injunction sought against Meta before a German court may therefore be framed so as to extend beyond Germany. Three issues must nevertheless be distinguished: the territorial reach of the substantive claim, the international jurisdiction of the court, and enforcement in other Member States. None of these has yet been resolved by a higher court.
Retroactive charges if the decision is set aside
Providers investing in WhatsApp-based services will need to assess whether Meta could later claim fees for the interim period. The decision itself offers guidance. Meta submitted that no mechanism existed to recover forgone fees, even if its pricing were subsequently upheld. The Commission did not dispute this and gave precedence to the risk of harm to competition.
- Annulment by the General Court. An annulment generally operates retroactively. It does not, of itself, give rise to a payment claim against providers. Providers used the API on the terms Meta was obliged to reinstate; any retroactive charge would require a separate contractual or restitutionary basis.
- Closure or decision without a finding of infringement. The measures lapse, and Meta may reintroduce its terms, but with prospective effect only.
- Decision finding an infringement. The Commission will determine, on the basis of Meta’s actual cost data, whether and to what extent a fee is permissible. Any such fee applies from the date of the decision.
In practice, Meta is therefore required to provide access before any permissible fee has been determined, and providers may enforce that obligation. Providers should nonetheless review the contractual terms through which Meta implements the decision. A reservation of retroactive charges would raise the question whether it is compatible with the prohibition of conduct having an equivalent effect.
Frequently asked questions
May AI providers again offer their services via WhatsApp?
Yes. Meta must restore access to the WhatsApp Business API for third-party general-purpose AI assistants on the terms applicable before 15 October 2025. On its wording, the order also extends to providers that have not previously used WhatsApp.
May Meta charge AI providers for access?
Not for replies to user-initiated messages while the interim measures are in force. Any subsequent fee must reflect Meta’s actual costs, which Meta must substantiate.
What remedies are available if Meta restricts access again?
Providers may report the breach to the Commission, which may impose periodic penalty payments. Independently, they may seek injunctive relief and damages before the German courts under Article 102 TFEU in conjunction with Sections 33 and 33a GWB and, where they depend on WhatsApp, under Section 20 GWB.
May a German court order Meta to grant access beyond Germany?
The Regional Court of Mainz has issued an injunction under the Digital Markets Act that was not confined to Germany. The same reasoning applies to Article 102 TFEU, which applies throughout the European Union. No higher court has yet ruled on the issue.
Is the Commission decision binding on German courts?
Not under Section 33b GWB, as the decision contains a prima facie finding only. National courts must nevertheless avoid decisions that would conflict with the decision the Commission intends to adopt.
May Meta charge fees retroactively if the decision is annulled?
Not without a separate legal basis. Providers use the API on the terms Meta was obliged to reinstate. A retroactive charge would require, for instance, a contractual reservation, the validity of which would itself be open to challenge.
Outlook
The decision addresses a gap left by the Digital Markets Act. Although WhatsApp is designated as a core platform service, none of the DMA obligations covers access by AI assistants to a messenger’s business interface. Article 102 TFEU fills that gap and, following Android Auto, now provides a cost-based standard for access fees. Whether that standard encompasses overheads and a return on capital will be determined in the main proceedings. Until then, providers may rely on the interim measures and, where necessary, enforce access themselves before the German courts.
Louven Rechtsanwälte PartGmbB advises and represents companies in competition and telecommunications law, in particular on access claims against dominant platforms, the Digital Markets Act and the Data Act. This includes enforcing claims under Article 102 TFEU and Sections 19, 20 and 33 GWB before German courts.
