EU DMA architect says Apple seems to want to be fined for non-compliance

AppleInsider

A Member of the European Parliament who worked on the EU's Digital Markets Act says Apple banning Epic Games is is weird, and so is likely to mean it becomes the first Big Tech firm to be fined under the new law.

Still from an Epic Games anti-Apple ad

The EU has already officially asked Apple to explain itself over refusing to allow Epic Games to create a rival App Store despite the DMA's rules. Now a German MEP who is not involved with enforcement, but did work on the DMA, says Apple is likely to be investigated for non-compliance.

German MEP Andreas Schwab, who led the negotiations that finalized the DMA on behalf of the EU Parliament, says that makes Apple a likely first target for non-compliance.

"[This issue with Epic] gives me a very clear expectation that they want to be the first," German MEP Andreas Schwab told Wired. "Apple's approach is a bit weird on all this and therefore it's low hanging fruit."

Schwab has no role in DMA enforcement.

App Store changes because of the DMA, and EU hypocrisy

Apple has repeatedly said that it has made its changes to the App Store and the new iOS 17.4 while talking with the EU. Consequently the EU knows everything it is doing, and the implication is that Apple believes it approves or would have said so.

The EU may now be saying so. "Under the DMA, there is no room for threats by gatekeepers to silence developers," said the EU's Thierry Breton on Twitter/X.

Under the #DMA, there is no room for threats by gatekeepers to silence developers.

I have asked our services to look into Apple's termination of Epic's developer account as a matter of priority.

To all developers in & : now is the time to have your say on gatekeepers'

-- Thierry Breton (@ThierryBreton)

March 7, 2024

"I have asked our services to look into Apple's termination of Epic's developer account as a matter of priority," he continued.

Apple's refusal to allow Epic Games a developer account in order to make a rival app store appears far from weird, however. Most of the detail that has been made public concerning the refusal has come via Epic Games, but even its cherry-picked quotes seem to back Apple.

Epic Games originally claimed to have been unexpectedly banned from the App Store in 2020. However, it soon revealed that the ban was the result of a deliberate campaign of breaking its App Store contract.

Consequently, Apple reportedly asked Epic Games what reassurances it could give that it would not break any new contract. Epic's response is said to have effectively boiled down to nothing more than "trust me."

Apple chose not to. There's no threat, and it's bizarre that Breton says that there is. Apple made a business decision because of a blatant and admitted violation of contract.

Epic Games will seemingly not be satisfied until it has completely free use of Apple's technology, and completely free access to Apple's customers. It's never going to get that, but it has the EU's ear and it's going to keep complaining.

Of course, Epic Games has the right to complain, whether or not its complaints have merit. The European Union does not have quite the same laws about the freedom of speech of companies as the US does, but the European Court of Human Rights has repeatedly defended the right of firms to say what it describes as "commercial speech."

But if that means Epic Games, Spotify or anyone else can say what they like about Apple, it works the other way. Part of what MEP Schwab says is "a bit weird" about Apple, for instance, is that the company publicly said that Epic Games is "verifiably untrustworthy."

From a contractual standpoint, as it applies to Apple, Epic is untrustworthy. It broke its contract with Apple willingly and with premeditation to try to get on the public's side, and the gambit failed. And, when Apple asked directly what assurances that they have that Epic would behave this time, Epic's CEO exercised his own free speech and gave a non-answer.

Free speech for Epic, but not for Apple, apparently.

For its part, the European Union is aiming to protect the peoples of its 27 member countries. It is laudable that it is working to prevent Big Tech firms simply doing what they like, and it is impressive that the EU has passed the DMA into law while other nations are still debating what to do.

However, the EU's implementation of its laws against some Big Tech firms seem to be only of help to other Big Tech firms. Epic Games could benefit, for instance, and Spotify has seen its spurious complaints lead to the EU fining Apple $2 billion over Apple Music -- despite Spotify holding well over 50% of the EU streaming market, and Apple in third or fourth behind it, with half the market share.



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lam92103

India is also working on a similar law and can fine companies based on global turnover. It is not long till Apple will be forced to allow competition by laws world over. They should be using this as a PR opportunity to get customers on their side, by offering some concessions, rather trying to fight the legislation

gatorguy

EU Commissioner Thierry Breton yesterday:

"Under the DMA, there is no room for threats by gatekeepers to silence developers."

Sounds like a line in the sand.

tmay

gatorguy said:

EU Commissioner Thierry Breton yesterday:

"Under the DMA, there is no room for threats by gatekeepers to silence developers."

Sounds like a line in the sand.

Poorly designed and implemented, dare I state, authoritarian, legislation at work. There should be mechanisms available to both parties to mitigate conflicts.

nubus

tmay said:

Poorly designed and implemented, dare I state, authoritarian, legislation at work. There should be mechanisms available to both parties to mitigate conflicts.

EU is like most of the world using civil law. You can't expect a court in Luxembourg to operate like one in Kansas.

avon b7

tmay said:

gatorguy said:

EU Commissioner Thierry Breton yesterday:

"Under the DMA, there is no room for threats by gatekeepers to silence developers."

Sounds like a line in the sand.

Poorly designed and implemented, dare I state, authoritarian, legislation at work. There should be mechanisms available to both parties to mitigate conflicts.

It went through all the typical phases before reaching its final state. That included industry consultantation. 

What conflicts are you referring to? 

Once passed, you either comply or you don't. If you're on the hook for something you have a voice. You will be heard. 

Even right now the EU has asked Apple to explain its position. Nothing authoritarian here.

As with any new legislation, kinks will have to be ironed out. We aren't talking about some little by-law. There are plenty of intricacies that will need to be dealt with along the way.

No different to any other EU Directive. 

That said, IMO, Apple's first stab at compliance has been deliberately confrontational. 

dewme

Apple excels at building products and services that are distinctly different from commodity. Why does the EU want to destroy something that makes Apple so unique and different by forcing Apple to lower its standards down to the level of its competitors? Many of those are barely surviving because they have no distinction with their bland and generic products and services. Is it the EU regulator’s jobs to ensure that even producers who suck still get a piece of the pie?

From what I understand, Apple contributes or provides a platform that directly impacts the jobs and livelihood of more than 2.5 million EU citizens. Are those folks ready and willing to sacrifice their livelihoods because of a tiny number of malcontents and politicians who want to level the competitive landscape by dragging Apple down into the same hole that these misfits and malcontents like Epic occupy?

tmay

avon b7 said:

tmay said:

gatorguy said:

EU Commissioner Thierry Breton yesterday:

"Under the DMA, there is no room for threats by gatekeepers to silence developers."

Sounds like a line in the sand.

Poorly designed and implemented, dare I state, authoritarian, legislation at work. There should be mechanisms available to both parties to mitigate conflicts.

It went through all the typical phases before reaching its final state. That included industry consultantation. 

What conflicts are you referring to? 

Once passed, you either comply or you don't. If you're on the hook for something you have a voice. You will be heard. 

Even right now the EU has asked Apple to explain its position. Nothing authoritarian here.

As with any new legislation, kinks will have to be ironed out. We aren't talking about some little by-law. There are plenty of intricacies that will need to be dealt with along the way.

No different to any other EU Directive. 

That said, IMO, Apple's first stab at compliance has been deliberately confrontational. 

The confrontation is wrt Epic. The Architect of the DMA made the comment "there is no room for threats by gatekeepers to silence developers". Yet, Apple has a valid point wrt to Epic, not a threat.

Thierry is not involved in enforcement, so should have avoided meddling in public. More to the point, and as I stated, this is untested legislation, so expectation are that it will have to be evolved over time.

avon b7

tmay said:

avon b7 said:

tmay said:

gatorguy said:

EU Commissioner Thierry Breton yesterday:

"Under the DMA, there is no room for threats by gatekeepers to silence developers."

Sounds like a line in the sand.

Poorly designed and implemented, dare I state, authoritarian, legislation at work. There should be mechanisms available to both parties to mitigate conflicts.

It went through all the typical phases before reaching its final state. That included industry consultantation. 

What conflicts are you referring to? 

Once passed, you either comply or you don't. If you're on the hook for something you have a voice. You will be heard. 

Even right now the EU has asked Apple to explain its position. Nothing authoritarian here.

As with any new legislation, kinks will have to be ironed out. We aren't talking about some little by-law. There are plenty of intricacies that will need to be dealt with along the way.

No different to any other EU Directive. 

That said, IMO, Apple's first stab at compliance has been deliberately confrontational. 

The confrontation is wrt Epic. The Architect of the DMA made the comment "there is no room for threats by gatekeepers to silence developers". Yet, Apple has a valid point wrt to Epic, not a threat.

Thierry is not involved in enforcement, so should have avoided meddling in public. More to the point, and as I stated, this is untested legislation, so expectation are that it will have to be evolved over time.

Breton is not the architect of the DSA/DMA.

Breton can voice his opinion however he wants. 

You didn't say untested legislation. You said poorly designed, implemented and authoritarian. 

teejay2012

I think Apple is expecting this to go to EU courts as Verstager has a history of policy and regulation that has been successfully challenged on legal grounds. Contracts are contracts, and Epic deliberately broke theirs with Apple. Apple had every legal right to terminate Epic, from a US court ruling and those contracts are signed in Cupertino. It would not be wise for the EU to ignore contract laws anywhere, particularly in the US. Apple and EU may still remain reasonable in this, as Apple has asked for reassurances from Sweeney, and the EU has asked Apple for clarification. Apple can park whatever fine the EU imposes and those funds will grow in escrow, like in the Irish tax case, and be returned if they get a favourable court ruling. We can hope that cooler heads prevail here, as destroying companies and markets can never be good.

tmay

avon b7 said:

tmay said:

avon b7 said:

tmay said:

gatorguy said:

EU Commissioner Thierry Breton yesterday:

"Under the DMA, there is no room for threats by gatekeepers to silence developers."

Sounds like a line in the sand.

Poorly designed and implemented, dare I state, authoritarian, legislation at work. There should be mechanisms available to both parties to mitigate conflicts.

It went through all the typical phases before reaching its final state. That included industry consultantation. 

What conflicts are you referring to? 

Once passed, you either comply or you don't. If you're on the hook for something you have a voice. You will be heard. 

Even right now the EU has asked Apple to explain its position. Nothing authoritarian here.

As with any new legislation, kinks will have to be ironed out. We aren't talking about some little by-law. There are plenty of intricacies that will need to be dealt with along the way.

No different to any other EU Directive. 

That said, IMO, Apple's first stab at compliance has been deliberately confrontational. 

The confrontation is wrt Epic. The Architect of the DMA made the comment "there is no room for threats by gatekeepers to silence developers". Yet, Apple has a valid point wrt to Epic, not a threat.

Thierry is not involved in enforcement, so should have avoided meddling in public. More to the point, and as I stated, this is untested legislation, so expectation are that it will have to be evolved over time.

Breton is not the architect of the DSA/DMA.

Breton can voice his opinion however he wants. 

You didn't say untested legislation. You said poorly designed, implemented and authoritarian. 

My mistake on Thierry.

I stated "untested legislation" in my second post.

Interesting that Thierry was behind many industry consolidations in the EU, attempting to create "Big Tech"; nothing wrong with that...

After two years of government service (2005–2007) Breton became in November 2008 the executive chairman and CEO of private-owned Atos S.A., formerly Atos Origin.[19] On the announcement of his nomination the share price, which was previously valued at 18 euros, rose by 7.84%.

In 2008 Atos generated a sales revenue of 5.5 billion euros with a headcount of 50,000 employees but according to Breton was "managed too compartmentally" and the company's inferior profitability margins compared to those of its competitors required a complete transformation plan.

In July 2011 Breton orchestrated the acquisition of the IT activities of German industry group Siemens which allowed the company to rank number one among the European IT services players and in the Top 5 worldwide, with 75 000 employees in 42 countries. The deal, valued at €850m ($1.1bn), was the biggest Franco-German transaction since an alliance between Germany's premium carmaker Daimler and France's Renault early this year.[20] The operation was lauded by the financial markets and the Atos share price rose by 11.6%.

With the integration of 28,000 engineers Atos became one of the most important Franco-German industrial collaborations since Airbus, illustrated particularly by a financial partnership (Siemens took 15% of Atos’ capital), and a common investment fund of 100 million euros was created as well as a joint response to international tenders. This strategy was awarded the prize for Industrial cooperation by the Franco-German Chamber of Commerce and Industry.

In 2012 Breton adopted the Societas Europaea for Atos which gave the company two headquarters, one in France and a second in Munich, Germany. Furthermore, he participated in other European institutional projects in which the Franco-German partnership played a central role such as the European Commission’s European Cloud Partnership (2012–2014) over which he co-presided with Jim Snabe, the co-CEO of the German software company SAP.

In May 2014 Breton launched a friendly takeover on French historic IT industry player Bull, turning Atos into the number one European company and one of the major global players in Big Data and Cybersecurity.[21] This acquisition, again commended by the markets (Atos’ share price rose by 6.2% and Bull's by 21.9% the day of the announcement) notably allowed the company to position itself in the supercomputing segment and to become the sole European manufacturer.

williamlondon

lam92103 said:

India is also working on a similar law and can fine companies based on global turnover. It is not long till Apple will be forced to allow competition by laws world over. They should be using this as a PR opportunity to get customers on their side, by offering some concessions, rather trying to fight the legislation

They already have customers on their side, you think all Apple customers were ignorant about the devices they bought or that they lied in those surveys that consistently put Apple at the top of customer service rankings? The EU is ignoring all of them by kowtowing to greedy, whiny corporate bitches like Epic and Spotify. The world is truly upside down on this.

avon b7

williamlondon said:

lam92103 said:

India is also working on a similar law and can fine companies based on global turnover. It is not long till Apple will be forced to allow competition by laws world over. They should be using this as a PR opportunity to get customers on their side, by offering some concessions, rather trying to fight the legislation

They already have customers on their side, you think all Apple customers were ignorant about the devices they bought or that they lied in those surveys that consistently put Apple at the top of customer service rankings? The EU is ignoring all of them by kowtowing to greedy, whiny corporate bitches like Epic and Spotify. The world is truly upside down on this.

They are two different things. 

Customers can only rate the services they have contact with. 

That has nothing to do with aspects that are deliberately shielded from them. 

Anti-steering is a classic example. 

How many users were asked about that in those customer service surveys? 

None? Not surprising. 

Some of them will have become aware of it but only as a result of the complaints from developers and subsequent news coverage. 

Most are in fact ignorant of the practices that have made the DSA/DMA necessary. 

It would be great if someone actually surveyed people on those issues. 

gatorguy

teejay2012 said:

I think Apple is expecting this to go to EU courts as Verstager has a history of policy and regulation that has been successfully challenged on legal grounds. Contracts are contracts, and Epic deliberately broke theirs with Apple. Apple had every legal right to terminate Epic, from a US court ruling and those contracts are signed in Cupertino. It would not be wise for the EU to ignore contract laws anywhere, particularly in the US. Apple and EU may still remain reasonable in this, as Apple has asked for reassurances from Sweeney, and the EU has asked Apple for clarification. Apple can park whatever fine the EU imposes and those funds will grow in escrow, like in the Irish tax case, and be returned if they get a favourable court ruling. We can hope that cooler heads prevail here, as destroying companies and markets can never be good.

In what many here will call an unexpected reaction to the EU's inquiry, it's now a non-issue, at least for the near future. Apple has backed down and reinstated Epic's developer account. 

Kierkegaarden

avon b7 said:

tmay said:

gatorguy said:

EU Commissioner Thierry Breton yesterday:

"Under the DMA, there is no room for threats by gatekeepers to silence developers."

Sounds like a line in the sand.

Poorly designed and implemented, dare I state, authoritarian, legislation at work. There should be mechanisms available to both parties to mitigate conflicts.

It went through all the typical phases before reaching its final state. That included industry consultantation. 

What conflicts are you referring to? 

Once passed, you either comply or you don't. If you're on the hook for something you have a voice. You will be heard. 

Even right now the EU has asked Apple to explain its position. Nothing authoritarian here.

As with any new legislation, kinks will have to be ironed out. We aren't talking about some little by-law. There are plenty of intricacies that will need to be dealt with along the way.

No different to any other EU Directive. 

That said, IMO, Apple's first stab at compliance has been deliberately confrontational. 

What Epic did in 2020 by violating their contract with Apple is separate from the DMA.  How they deal with Epic has no bearing on “compliance” with the DMA.  The EU buffoons that tweet out that they are “looking into” this and that just means that they are ignorant of what went on between the two companies for the last few years. 

avon b7

Kierkegaarden said:

avon b7 said:

tmay said:

gatorguy said:

EU Commissioner Thierry Breton yesterday:

"Under the DMA, there is no room for threats by gatekeepers to silence developers."

Sounds like a line in the sand.

Poorly designed and implemented, dare I state, authoritarian, legislation at work. There should be mechanisms available to both parties to mitigate conflicts.

It went through all the typical phases before reaching its final state. That included industry consultantation. 

What conflicts are you referring to? 

Once passed, you either comply or you don't. If you're on the hook for something you have a voice. You will be heard. 

Even right now the EU has asked Apple to explain its position. Nothing authoritarian here.

As with any new legislation, kinks will have to be ironed out. We aren't talking about some little by-law. There are plenty of intricacies that will need to be dealt with along the way.

No different to any other EU Directive. 

That said, IMO, Apple's first stab at compliance has been deliberately confrontational. 

What Epic did in 2020 by violating their contract with Apple is separate from the DMA.  How they deal with Epic has no bearing on “compliance” with the DMA.  The EU buffoons that tweet out that they are “looking into” this and that just means that they are ignorant of what went on between the two companies for the last few years. 

What Epic did in the US had nothing to do with the EU but what Apple was claiming it would do now had a lot to do with the EU. 

mobird

Hope Apple remain "confrontational" to put this in the EU courts.

Maybe Apple starts a campaign in the EU like tiktok is now raging in the USA to contact the tiktok user's local representative to push back on banning tiktok...
Is there really a large aggreived Apple user base in the EU?

Naiyas

avon b7 said:

What Epic did in the US had nothing to do with the EU but what Apple was claiming it would do now had a lot to do with the EU. 

Actually it does. You see if you are/were a developer you would find that the developer contract you sign to be part of the developer program has its legal foundation and authority in US law - therefore the contract is enacted via US law and any disputes are handled via the US legal system.

it doesn’t actually matter what country you want to do business in, as if you breach the contract under US law then you lose all rights to use Apples IP under the terms of the contract, that includes developing on their platforms.

if you can’t develop on Apple’s platforms you can’t get any certificates… you’re finished.

its been basic contract law since time immemorial, and no EU (or any other country’s) law can stop it from being so.

avon b7

Naiyas said:

avon b7 said:

What Epic did in the US had nothing to do with the EU but what Apple was claiming it would do now had a lot to do with the EU. 

Actually it does. You see if you are/were a developer you would find that the developer contract you sign to be part of the developer program has its legal foundation and authority in US law - therefore the contract is enacted via US law and any disputes are handled via the US legal system.

it doesn’t actually matter what country you want to do business in, as if you breach the contract under US law then you lose all rights to use Apples IP under the terms of the contract, that includes developing on their platforms.

if you can’t develop on Apple’s platforms you can’t get any certificates… you’re finished.

its been basic contract law since time immemorial, and no EU (or any other country’s) law can stop it from being so.

Apple actually had to modify its terms to accommodate EU (DSA) requirements and one of them specifically targeted redress options in case of cancelation of developer licenses so there seems to be at least partial influence on that front. 

I'm not a lawyer though. 

This would have been a perfect opportunity to put these issues to the test. 

sirdir

Dear William, you know, banning a company (and it's games) from millions of devices isn't quite the same as 'free speech'. 
Apple can say about Epic whatever they want, in my opinion, but I as a customer don't want to fear my favorite app won't exist anymore next week because Apple might get mad at the developer. And cancelling the last account just the day 3rd party apps were enforced was a really, really stupid move. Apple is losing goodwill and reputation quickly all over the world for a fight they cannot win.

sirdir

williamlondon said:

They already have customers on their side, you think all Apple customers were ignorant about the devices they bought or that they lied in those surveys that consistently put Apple at the top of customer service rankings? The EU is ignoring all of them by kowtowing to greedy, whiny corporate bitches like Epic and Spotify. The world is truly upside down on this.

Funny how one of the highest vaulted companies in the world can be the victim here. I'm pretty sure Apple didn't get a high ranking by making the use of Apps impossible.