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Government & Policy


UK’S COMPETITION AUTHORITY ENDS PROBES OF APPLE AND GOOGLE BUT WILL USE INCOMING
POWERS TO ‘RESOLVE APP STORE CONCERNS’

Natasha Lomas
5:25 AM PDT • August 21, 2024

Comment

Image Credits: Pavlo Gonchar/SOPA Images/LightRocket / Getty Images

Apple and Google can take a breath after the U.K. competition watchdog announced
Wednesday it’s closing a pair of investigations into their respective mobile app
ecosystems, citing administrative priorities.

Since March 2021, the U.K. regulator had been investigating Apple’s conduct in
relation to the distribution of apps on its iOS and iPadOS mobile devices, with
a particular focus on terms and conditions (T&Cs) governing developers’ access
to its App Store. Since June 2022, a similar probe had also been looking into
Google’s conduct around app distribution on Android devices, including looking
at its Play Store rules for its own billing system for in-app purchases. The
Competition and Markets Authority (CMA) had said it was concerned the pair’s
T&Cs may unfairly limit developers’ choice.



The CMA also previously found substantial grounds for concern over the pair’s
mobile duopoly.

Nonetheless, it’s now shuttered both probes without taking any action.

But any relief from Apple and Google at this regulatory reprieve is likely to be
brief, as the CMA has said its overarching reason for closing the probes is an
expectation of being able to use new competition powers that will allow it to
apply special abuse controls on tech giants with strategic market power.

Writing in a press release, the CMA said it will look to the incoming digital
markets regime to “resolve app store concerns.”

It also wrote that it “anticipates that its early work under the new digital
markets competition regime will build on and leverage its experience in areas it
has already studied, such as mobile ecosystems, which includes app stores” —
giving its clearest signal yet that Apple and Google are first in line for
special abuse controls.




Commenting in a statement, Will Hayter, executive director for digital markets
at the CMA, added: “Once the new pro-competition digital markets regime comes
into force, we’ll be able to consider applying those new powers to concerns we
have already identified through our existing work.



“It’s critical that tech businesses in the U.K., including app developers, can
have access to a fair and competitive app ecosystem, helping to grow the sector,
boost investment and result in better outcomes for U.K. consumers. These are all
factors we are considering before launching our first investigations under the
new regime.”

The U.K.’s rebooted digital markets regime has been in the works for years —
greenlit as far back as November 2020 but hit with legislative delays as a
result of the political turmoil from chopping and changing conservative
governments in recent years.

Finally, in April last year, the plan was revived and the Digital Markets,
Competition and Consumer bill ended up being rushed through parliament in the
“wash-up” ahead of the May 2024 general election — meaning the CMA is finally
poised to wield powers to crack down on Big Tech once the regime comes into
force (which it expects “later this year”).

“In light of recent developments, in particular the passing in May of the
Digital Markets, Competition and Consumers Act (DMCCA), the CMA has assessed its
existing Competition Act investigation into Google’s Play Store and its parallel
case into Apple’s App Store rules against its administrative priorities and
decided to close these cases at this point,” the CMA wrote.

“Should Apple or Google each or both be designated as having ‘strategic market
status’ in connection with any digital activities in the mobile sector, the CMA
will be able to use its new powers to consider the range of issues raised by
parties more holistically than it otherwise could under these specific
Competition Act investigations. This will also enable the CMA to consider what,
if any, interventions may be needed following any designation.”



U.K. developers hoping for the regulator to take swift action to reboot the
Apple and Google duopoly will still need to wait longer, though. The DMCCA
requires the CMA to undertake investigations to determine whether a tech giant’s
market power meets the law’s bar of “strategic market status” (SMS) — and, if
so, designate it as subject to the regime.

In January, the CMA said it expected to undertake three to four investigations
to determine SMS in the first year of the regime coming into force. So there
could still be quite some delay before any U.K. Big Tech crackdown can happen.



In one sign of potentially tougher operating conditions coming down the pipe for
platform operators under the rebooted approach, it’s notable the CMA rejected
commitments that had been submitted by Google in response to concerns about Play
Store terms under its (now shuttered) investigation. Had the CMA accepted the
commitments, it could have limited the scope of remedies it may otherwise order
on Google under the digital markets regime, assuming (as is highly likely) it
ends up being designated as having SMS.

The CMA said Google’s proposals would have given app developers the ability to
use alternative payment options to its Play’s billing system, under proposals
known as “Developer-Only Billing” and “User Choice Billing.” But after
consulting with developers, and reviewing feedback and available evidence, the
CMA said it was not satisfied Google’s proposed commitments addressed its
competition concerns effectively — hence taking the decision to reject it.

“Feedback from app developers suggested Google’s proposals to allow app
developers to use alternative payment methods for in-app payments did not go far
enough and they would in practice remain tied to the Google payment system,” it
wrote. “In particular, app developers referred to the level of commission they
would still be paying to Google, and to the proposed ‘pop-up screens’ that might
put users off completing a transaction.”



How the CMA designs any future interventions on designated tech giants will be
one to watch, as the DMCCA gives the regulator leeway to make bespoke
interventions tailored to the specific platform and problems it identifies —
setting the U.K.’s approach apart from the more prescriptive competition reboot
— the Digital Markets Act, known as the DMA — that’s already up and running in
the European Union.

However, the DMA’s fixed list of dos and don’ts have applied to Apple and Google
since early March, when the EU regime came into force on designated gatekeepers.
So the U.K. continues to lag far behind the bloc when it comes to tackling
platform power.




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TAGS

apple app store cma, Apps, cma digital markets regime, google play store cma,
Government & Policy, TC, United Kingdom

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