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EU: Commission sends preliminary findings to Apple and opens additional non-compliance investigation under the DMA

On June 24, 2024, the European Commission announced that it had informed Apple of its preliminary findings that its App Store rules are in breach of the Digital Markets Act (DMA) and had opened a new non-compliance procedure against Apple over concerns that its new contractual requirements for third-party app developers and app stores.

Preliminary findings

The Commission outlined that Apple currently has three sets of business terms governing its relationship with app developers that may be in breach of Article 5(4) of the DMA, which requires gatekeepers to allow app developers to steer consumers to offers outside the gatekeepers' app stores, free of charge. The Commission found that:

  • none of the business terms allow developers to freely steer their customers;
  • under most of the business terms available, Apple allows steering only through 'link-outs' (meaning links redirecting the customer to another webpage to conclude a contract), which are subject to restrictions imposed by Apple to prevent app developers from communicating, promoting offers, and concluding contracts through the distribution channel of their choice; and
  • fees charged by Apple for the initial acquisition of a new customer by the developer go beyond what is strictly necessary for such remuneration.

The Commission outlines that sending preliminary findings is without prejudice to the outcome of the investigation, as Apple can now examine the documents in the Commission's investigation file and reply in writing to the preliminary findings.

New non-compliance procedure

The Commission highlighted that it opened a third non-compliance investigation regarding compliance with Article 6(4) of the DMA concerning Apple's new contractual terms for developers as a condition to access some of the new features enabled by the DMA. Specifically, the provision of alternative app stores or the possibility of offering an app via an alternative distribution channel.

In particular, the Commission will investigate compliance with the DMA of:

  • Apple's Core Technology Fee, under which developers of third-party app stores and third-party apps must pay a €0.50 fee per installed app;
  • Apple's multi-step user journey to download and install alternative app stores or apps on iPhones, as well as the various information screens displayed by Apple to the user; and
  • the eligibility requirements for developers related to the ability to offer alternative app stores or directly distribute apps from the web on iPhones, such as the 'membership of good standing' in the Apple Developer Program.

The Commission outlined that it will continue undertaking preliminary investigative steps outside of the scope of the above investigation, such as the checks and reviews put in place by Apple to validate apps and alternative app stores to be sideloaded.

You can read the press release here.