Apple told EU regulators it has three browsers, all called Safari

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in iOS

In one of its efforts to avoid exceeding user thresholds and so having to comply with the EU's Digital Markets Act, Apple has tried to claim it has three separate Safari browsers.




The ploy did not work, it has been rejected by the European Union, and it was never likely to succeed. Not since the entire Digital Markets Act was really created specifically to target Big Tech firms such as Apple.

These firms are described as "gatekeepers" under the EU law, which came into force on November 1, 2022, and became applicable on May 2, 2023. Amongst other considerations, a company is labelled a gatekeeper if it has over 45 million active users in Europe monthly, and at least a 75 billion euro ($80 billion) market capitalization.

As first spotted by The Register, Apple was declared a gatekeeper in its core platform services (CPS). Those are Apple's operating systems, its App Store, and the Safari web browser.

Over a series of exchanges with the EU, Apple tried objecting to the claim that it meets gatekeeper status on web browsers. According to the EU's newly-published ruling, "Apple disagrees with the preliminary view set out in the Commission's letter of 25 July 2023 that the Safari web browsers should be considered as one single web browser CPS."

Three Safaris, each alike in dignity.
Three Safaris, each alike in dignity.



"In its reply to that letter, Apple reiterated its position that each of its Safari web browsers constitutes a distinct CPS," continues the report. "Moreover, Apple considers that it meets the thresholds laid down in Article 3(2) of Regulation (EU) 2022/1925 only in relation to Safari on iOS."

The European Commission's report about its deliberations on the issue then take up three pages, but in the more than a thousand words of argument, really just four are key. In denying Apple's argument, the EU quotes the company's own advertising, which says -- "Same Safari. Different device."

Five different OSes



Apple tried the same argument over its different operating systems, but there it was on more solid ground. According to the EU's report, Apple said "that it offers five distinct operating systems," and that "only iOS meets the [DMA] thresholds."

Only Apple's iOS comes under the DMA's definition of a gatekeeper operating system
Only Apple's iOS comes under the DMA's definition of a gatekeeper operating system



Those operating systems are of course iOS for the iPhone, iPadOS, macOS, watchOS, and tvOS. Apple argues that each OS is built "to exclusively operate the respective device."

"Apple submits that the extent to which its operating systems are tailored to a specific device and to Apple's hardware, differentiates Apple from other providers, such as Google," it continues, "whose operating system Android is designed to support both smartphones and tablets and to work on devices of many original equipment manufacturers."

The iPhone and iPad used to run the same operating system, but the EU report says that "since 2019, [Apple] has been offering distinct operating systems for each device." Apple itself pointed out that the iPad can run iPhone apps, but "it follows from Apple's submissions that 'Compatibility Mode' provides a significantly inferior experience."

Consequently, the EU accepted Apple's argument about five separate operating systems. It therefore accepted the company's position that only iOS qualifies as a gatekeeper.

iMessage



This same EU report also puts to rest a back-and-forth between Apple and regulators over Messages, and not in Apple's favor.

After originally confirming that Messages qualifies under the DMA thresholds, Apple then later reversed its position and argued that it does not. In September 2023, it was reported that both Apple's Messages and Microsoft's Bing had been removed from the law, while under further consideration.

The EU says the fact that Apple doesn't charge separately for iMessages isn't enough to exclude it from regulations
The EU says the fact that Apple doesn't charge separately for iMessages isn't enough to exclude it from regulations



"According to Apple, iMessage is not a fee-based service and Apple does not monetise it via the sale of hardware devices nor via the processing of personal data," says the report. "In particular, Apple argues that there is no direct link between the setting of the price and the purchase of hardware devices, and the use of iMessage."

Apple's central argument is that it does not make money from Messages and that this fact alone means it does not meet the DMA's definition for gatekeeper status.

However, the EU notes that the definition actually "refers to services that 'normally provided for renumeration'."

Apple must have been fully aware of that definition because in its case it also notes a little sniffily that "the fact that other messaging services are offered for remuneration is irrelevant for the qualification of iMessage."

Unfortunately for Apple, the DMA definition is based on one set by the Court of Justice of the European Union, which "has interpreted the concept of renumeration broadly, as including not only direct payment for the service itself, but also other forms of indirect renumeration, such as through the sale of associated devices."

So if a user wants to use iMessage, they have to buy an iPhone.

"Therefore, Apple receives a remuneration through the sale of Apple devices not only for the hardware, but also for Apple's software applications that go with it, including the iMessage service," says the report. "In this respect, and even if it is not decisive for the notion of remuneration whether a service plays a minor or major role in the marketing of hardware devices, iMessage is an important element of the expansion of Apple's ecosystem which, by the same token, includes hardware."

The EU concludes that Apple's Messages service qualifies as a gatekeeper.

What happens next



It's not clear whether Apple has any further opportunity for appeal, which would delay its having to comply with the Digital Markets Act still further.

Assuming that Apple eventually has to comply, the most visible impact will be that the EU will require Messages -- and the App Store -- to be opened up to third party alternatives.

Gatekeeper firms who fail to comply with the DMA requirements within six months will face investigation. They could then potentially see "behavioral or structural remedies" enforced on them.

Ultimately, that enforcement could see Apple, or other non-complying firms, being fined up to 10% of their worldwide turnover. At times, it has seemed as if Apple and other Big Tech firms have just found it more cost-effective to simply pay fines, but repeat DMA offenders can be fined up to 20% of turnover.

Read on AppleInsider

Comments

  • Reply 1 of 18
    gatorguygatorguy Posts: 24,104member
    shrinkdad said:
    The author doesn't seem to know the difference between remuneration and renumeration. It's embassarring (sic).
    https://writingexplained.org/renumeration-vs-remuneration-spelling
    And I don't think it's embarrassing at all. It's not the author's wording AFAICT. Did you miss the quotation marks? 
    edited November 2023 Spitbathcoolfactordewmejony0
  • Reply 2 of 18
    The DMA is a bunch of BS. Apple should send a message to every customer they know about in the EU explaining the situation, stating that they will stop doing business in the EU, and follow through with that if the DMA isn't repealed. It's in their long-term interest, as compliance will mean giving up their competitive advantage and that will kill any company after a while.
    rezwitsmagman1979pulseimagesbyronlwatto_cobra
  • Reply 3 of 18
    wdowellwdowell Posts: 226member

    In denying Apple's argument, the EU quotes the company's own advertising, which says — "Same Safari. Different device."

    This is priceless  :D

    edited November 2023 Alex_Vnubus
  • Reply 4 of 18
    avon b7avon b7 Posts: 7,529member
    timpetus said:
    The DMA is a bunch of BS. Apple should send a message to every customer they know about in the EU explaining the situation, stating that they will stop doing business in the EU, and follow through with that if the DMA isn't repealed. It's in their long-term interest, as compliance will mean giving up their competitive advantage and that will kill any company after a while.
    They could also inform customers of all the limitations it places on what users can and cannot do, the lock-in practices and choices that are taken away from them.

    Apple knows perfectly well every customer it has in the EU. It can serialise components on devices and keep track of them but for some reason it has never ever contacted me to let me know about repair programs for known issues, in spite of knowing the serial numbers of every device I own and having a wealth of contact information. 

    I'm all for information so it would be great to receive such a letter from them, but judging from the Safari argument, I'm sure a fair bit of interpretation will be required. 

    Far from BS the DMA is a much needed piece of legislation. Feel free to complain about just how the qualifying numbers for Gatekeepers were established but the DMA is more than that. 
    chasmAlex_VOfermuthuk_vanalingam
  • Reply 5 of 18
    chasmchasm Posts: 3,232member
    timpetus said:
    The DMA is a bunch of BS. Apple should send a message to every customer they know about in the EU explaining the situation, stating that they will stop doing business in the EU, and follow through with that if the DMA isn't repealed. It's in their long-term interest, as compliance will mean giving up their competitive advantage and that will kill any company after a while.
    Yeah, I’m sure you enjoy that fantasy world you live in, but here on Earth that’s never going to happen.
    Alex_VOfermuthuk_vanalingam
  • Reply 6 of 18
    While I disagree with Apple's argument about "3 different Safari" browsers, I fail to see how Safari could be a gatekeeper. Unlike days past where certain websites only worked with the proprietary MS Internet Explorer, we live in an age of web standards, which Safari was instrumental in spearheading.
    jas99magman1979byronlOferwatto_cobra
  • Reply 7 of 18
    chasm said:
    timpetus said:
    The DMA is a bunch of BS. Apple should send a message to every customer they know about in the EU explaining the situation, stating that they will stop doing business in the EU, and follow through with that if the DMA isn't repealed. It's in their long-term interest, as compliance will mean giving up their competitive advantage and that will kill any company after a while.
    Yeah, I’m sure you enjoy that fantasy world you live in, but here on Earth that’s never going to happen.
    How do you figure tho?  If the EU keeps slapping the major tech companies with $40 Billion+ in eventual fines PER YEAR, it's like in the END, Apple is going to have to say were not paying goodbye, or lose all profits to the EU and make no money?  They're already hampering so many tech companies.

    The EU regulators just want to sit up in their high chairs and dictate tech policy, but not actually do the WORK to enforce the policies, and it's the US tech companies duty?!?  That's nuts...

    Right now the EU looks at how much profits a tech company has and just decide to take a %%% cut.  I mean in the old days fines were like "OK $5 million fine."  Now it's like how much profit do they have?  We're taking 25%!  That's extortion!

    This is the most disgusting abuse of power without even having to have VOTING in place, it's just their Government dictates to US Companies and they must abide.  It's not even a tariff, it's BEEEEYOOOND!

    Get a clue, they're TYRANNICAL!!
    williamlondonjas99magman1979byronlwatto_cobra
  • Reply 8 of 18
    gatorguy said:
    shrinkdad said:
    The author doesn't seem to know the difference between remuneration and renumeration. It's embassarring (sic).
    https://writingexplained.org/renumeration-vs-remuneration-spelling
    And I don't think it's embarrassing at all. It's not the author's wording AFAICT. Did you miss the quotation marks? 
    Great article! Learned something new today. 

    You can bet your bottom dollar that renumeration will become part of the American English dictionary, just because they love to be different. 🤣
    gatorguywatto_cobra
  • Reply 9 of 18
    Whilst I’m pleased we got USB-C I don’t like the bully way at times the EU thinks it can stamp its mark on stuffing creative companies. They need to look at their own pathetic list of counties who only leach of the rest of the others in a money grab. I’m so glad the UK told them tonfuck off. It’s a bunch of cheating liers whos ministers are bend as they come taking bribes and just living off the trivial BS they create.  Let’s hope others who’ve been paying leave and just show to the world what a really poorly run boys club they have created. 
    rezwitsmagman1979byronlwatto_cobrawilliamlondon
  • Reply 10 of 18
    22july201322july2013 Posts: 3,557member
    The US could fight back by forcing big EU car companies, and there are many, to allow all US customers to install apps and OS's of their choice on their vehicle's infotainment system, and to install American-made parts on those cars, or else the EU can't sell cars to America anymore. The EU is certainly a "car gatekeeper."
    magman1979danoxbyronlwatto_cobra
  • Reply 11 of 18
    magman1979magman1979 Posts: 1,292member
    These f'ing, dumb ass, tech-illiterate EU bureaucrats are really starting to make me sick...

    If they want to force Apple to open up Messages, Apple should give the EU the middle finger and withdraw from the market, teach those asshats a lesson.
    Kierkegaardenbyronlwatto_cobrawilliamlondon
  • Reply 12 of 18
    wdowell said:

    In denying Apple's argument, the EU quotes the company's own advertising, which says — "Same Safari. Different device."

    This is priceless  :D

    What — the fact that the EU morons are too stupid to realize that the ad isn’t referring to a singular product with a singular code base?
    byronlwatto_cobra
  • Reply 13 of 18
    Whilst I’m pleased we got USB-C I don’t like the bully way at times the EU thinks it can stamp its mark on stuffing creative companies. They need to look at their own pathetic list of counties who only leach of the rest of the others in a money grab. I’m so glad the UK told them tonfuck off. It’s a bunch of cheating liers whos ministers are bend as they come taking bribes and just living off the trivial BS they create.  Let’s hope others who’ve been paying leave and just show to the world what a really poorly run boys club they have created. 
    Exactly this, im English and we now have the best of both worlds (in my opinion), with none of the meddling and enforcement of laws that are not to our benefit….
    now we just have our own people make our own laws, thats not turning out too well either but atleast we can kick them out if they do a bad job….
    watto_cobrawilliamlondon
  • Reply 14 of 18
    avon b7avon b7 Posts: 7,529member

    avon b7 said:
    timpetus said:
    The DMA is a bunch of BS. Apple should send a message to every customer they know about in the EU explaining the situation, stating that they will stop doing business in the EU, and follow through with that if the DMA isn't repealed. It's in their long-term interest, as compliance will mean giving up their competitive advantage and that will kill any company after a while.
    They could also inform customers of all the limitations it places on what users can and cannot do, the lock-in practices and choices that are taken away from them.

    Apple knows perfectly well every customer it has in the EU. It can serialise components on devices and keep track of them but for some reason it has never ever contacted me to let me know about repair programs for known issues, in spite of knowing the serial numbers of every device I own and having a wealth of contact information. 

    I'm all for information so it would be great to receive such a letter from them, but judging from the Safari argument, I'm sure a fair bit of interpretation will be required. 

    Far from BS the DMA is a much needed piece of legislation. Feel free to complain about just how the qualifying numbers for Gatekeepers were established but the DMA is more than that. 
    Do you know how NOT to be an obtuse, Apple-hating troll? FFS
    Have you ever thought about how Apple and the rest got themselves into this situation in the first place? 

    Not only in the EU but in many jurisdictions, including the US.

    That is the point. That is what is up for discussion and although the cases might change, at some point, they ALL place the microscope over the aspect of abuse of dominant position. You know, like being a gatekeeper.

    So, instead of making accusations, why not trying reading, not only my reply, but also the point I was replying too? 

    I suppose you share the same distorted viewpoint of the OP.
    Ofermuthuk_vanalingam
  • Reply 15 of 18
    avon b7avon b7 Posts: 7,529member
    ionicle said:
    Whilst I’m pleased we got USB-C I don’t like the bully way at times the EU thinks it can stamp its mark on stuffing creative companies. They need to look at their own pathetic list of counties who only leach of the rest of the others in a money grab. I’m so glad the UK told them tonfuck off. It’s a bunch of cheating liers whos ministers are bend as they come taking bribes and just living off the trivial BS they create.  Let’s hope others who’ve been paying leave and just show to the world what a really poorly run boys club they have created. 
    Exactly this, im English and we now have the best of both worlds (in my opinion), with none of the meddling and enforcement of laws that are not to our benefit….
    now we just have our own people make our own laws, thats not turning out too well either but atleast we can kick them out if they do a bad job….
    I would not be optimistic about any of that. Most EU laws (thousands of them) are likely to go unchanged once reviewed and absolutely any agreement with regards to a UK/US trade deal will  entail major reform to legislation to accommodate US demands on key areas such as food safety, consumer protection, big data and big pharma.

    The UK has zero leverage at the negotiating table.

    Expect its own DMA/DSA to be very watered down with regards to the EU equivalent. 
    edited November 2023
  • Reply 16 of 18
    timpetus said:
    The DMA is a bunch of BS. Apple should send a message to every customer they know about in the EU explaining the situation, stating that they will stop doing business in the EU, and follow through with that if the DMA isn't repealed. It's in their long-term interest, as compliance will mean giving up their competitive advantage and that will kill any company after a while.
    Maybe they could do the same thing for their customers in China.
    williamlondon
  • Reply 17 of 18
    rezwits said:
    chasm said:
    timpetus said:
    The DMA is a bunch of BS. Apple should send a message to every customer they know about in the EU explaining the situation, stating that they will stop doing business in the EU, and follow through with that if the DMA isn't repealed. It's in their long-term interest, as compliance will mean giving up their competitive advantage and that will kill any company after a while.
    Yeah, I’m sure you enjoy that fantasy world you live in, but here on Earth that’s never going to happen.
    How do you figure tho?  If the EU keeps slapping the major tech companies with $40 Billion+ in eventual fines PER YEAR, it's like in the END, Apple is going to have to say were not paying goodbye, or lose all profits to the EU and make no money?  They're already hampering so many tech companies.

    The EU regulators just want to sit up in their high chairs and dictate tech policy, but not actually do the WORK to enforce the policies, and it's the US tech companies duty?!?  That's nuts...

    Right now the EU looks at how much profits a tech company has and just decide to take a %%% cut.  I mean in the old days fines were like "OK $5 million fine."  Now it's like how much profit do they have?  We're taking 25%!  That's extortion!

    This is the most disgusting abuse of power without even having to have VOTING in place, it's just their Government dictates to US Companies and they must abide.  It's not even a tariff, it's BEEEEYOOOND!

    Get a clue, they're TYRANNICAL!!
    How is it any worse than what the US government did to US companies like AT&T and IBM?
    williamlondon
  • Reply 18 of 18
    nubusnubus Posts: 310member
    rezwits said:
    This is the most disgusting abuse of power without even having to have VOTING in place, it's just their Government dictates to US Companies and they must abide.  It's not even a tariff, it's BEEEEYOOOND!
    Based on this, I fully expect US to give foreign companies the right to vote.... not?
    There is voting in EU for every bit of legislation. We just don't allow corporations or foreign citizens the right to elect those that represent us. How can that even be a surprise?
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