The ACM’s Apple decision: to boldly go where no enforcer has gone before

Abstract

App stores are at the epicentre of current antitrust enforcement as cases are unfolding across the globe.1 While Google’s Play Store is not insulated from antitrust enforcement, most complaints target Apple’s App Store. The complainants are diverse, but the most vocal among them—including Epic Games, Spotify, and Match Group—have grouped together in the Coalition for App Fairness.2 They have two main grievances. First, Apple reserves to its own App Store the monopoly of app distribution within iOS. Second, developers selling digital content via the App Store must use Apple’s in-app purchase system (IAP), which comes with a 30 per cent fee, and cannot inform users of alternative purchasing possibilities such as the web (‘anti-steering provision’).3 For comparative purposes, two cases are particularly important. First, Epic has tried to break the App Store’s monopoly within iOS. A US judge rejected its monopolization claim but did find Apple’s anti-steering provision in breach of California’s unfair competition law.4 Second, the European Commission (EC) has adopted a statement of objections regarding the mandatory use of IAP and the related anti-steering provision.5 This critique examines the Apple decision of the Dutch Authority for Consumers & Markets (ACM) within that context, focusing on the ACM’s choice for an exploitative rather than an exclusionary theory of harm.