EU DMA architect says Apple appears to want to fine for non-compliance

Still from Epic Games anti-Apple advertising

Member of the European Parliament, served on the EU Digital Markets Act Apple's ban on Epic Games is said to be bizarre, and it likely means it will become the first major tech firm to be fined under the new law.

The EU has already officially asked Apple to explain itself in connection with its refusal to allow Epic Games to create a competing App Store, despite DMA rules. Now a German MEP, who is not involved in enforcement but worked on the DMA, says Apple will likely be investigated for non-compliance.

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

“[This problem with Epic] gives me a very clear idea that they want to be first,” German MEP Andreas Schwab told Wired. “Apple's approach to all this is a little strange, and that's why it's a low hanging fruit.”

Schwab has no role in enforcing the DMA.

App Store is changing due to DMA and EU hypocrisy

Apple has repeatedly said it made changes to the App Store and the new iOS 17.4 during negotiations with the EU. Therefore, the EU knows everything it does, and the implication is that Apple believes it approves or would say so.

Perhaps the EU is now saying so. “There is no place under the DMA for threats from middlemen to silence developers,” EU spokesman Thierry Breton said on Twitter/X.

“I have asked our services to consider Apple removing the Epic developer account as a priority,” he continued.

However, Apple's refusal to give Epic Games a developer account in order to create a competing app store does not seem strange. Most of the details about the failure were made public through Epic Games, but even the cherry-picked quotes seem to favor Apple.

Epic Games initially claimed that it was unexpectedly banned from the App Store in 2020. However, it soon became clear that the ban was the result of a deliberate campaign to violate the contract with the App Store.

Apple then reportedly asked Epic Games what guarantees it could give that it wouldn't break any new contracts. Epic's response is said to have essentially amounted to “trust me.”

Apple decided not to do this. There is no threat, and it is strange that Breton says there is one. Apple made a business decision due to a blatant and admitted breach of contract.

Epic Games, it seems, will not rest until it has completely free use of Apple technology and completely free access to Apple customers. He will never get it, but the EU listens to him and he will continue to complain.

Of course, Epic Games has the right to complain, whether its complaints have merit or not. The European Union does not have the same corporate freedom of speech laws as the United States, but the European Court of Human Rights has repeatedly defended the right of companies to speak what it calls “commercial speech.”

But if that means Epic Games or Spotify or whoever can say whatever they like about Apple, then it works the other way around. For example, MEP Schwab thinks it's “a little odd” about Apple that the company has publicly stated that Epic Games is “provably untrustworthy.”

From a contractual perspective, as applied to Apple, Epic is not trustworthy. She ended her contract with Apple voluntarily and deliberately to try to side with the public, but that gambit failed. And when Apple asked directly what guarantees they had that Epic would behave well this time, Epic's CEO exercised his freedom of speech and did not answer.

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

For its part, the European Union strives to protect the people of its 27 member countries. It's commendable that he's working to get big tech companies to just do what they like, and it's impressive that the EU has passed the DMA into law while other countries are still debating what to do.

However, the EU's enforcement of its laws against some big tech companies only seems to help other big tech companies. For example, Epic Games could benefit, and Spotify saw its false complaints lead to the EU fining Apple $2 billion over Apple Music — despite Spotify having over 50% of the EU streaming market and Apple coming in third or fourth with half the market.

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