European Commission Dings Apple Over Anti-Steering Provisions in App Store, and Opens New Investigations Into Core Technology Fee, Sideloading Protections, and the Eligibility Requirements to Offer an Alternative Marketplace

The European Commission:

Today, the European Commission has informed Apple of its preliminary view that its App Store rules are in breach of the Digital Markets Act (DMA), as they prevent app developers from freely steering consumers to alternative channels for offers and content.

I think what they’re saying here is that Apple’s current compliance offering, where developers can remain exclusively in the App Store in the EU under the existing terms, or choose the new terms that allow for linking out to the web, aren’t going to pass muster. The EC wants all apps to be able to freely — as in free of charge freely — link out to the web for purchases, regardless of whether they’re from the App Store, an alternative marketplace, or directly sideloaded.

The Commission will investigate whether these new contractual requirements for third-party app developers and app stores breach Article 6(4) of the DMA and notably the necessity and proportionality requirements provided therein. This includes:

1. Apple’s Core Technology Fee, under which developers of third-party app stores and third-party apps must pay a €0.50 fee per installed app. The Commission will investigate whether Apple has demonstrated that the fee structure that it has imposed, as part of the new business terms, and in particular the Core Technology Fee, effectively complies with the DMA.

No word on how it doesn’t comply, just that they don’t like it.

2. Apple’s multi-step user journey to download and install alternative app stores or apps on iPhones. The Commission will investigate whether the steps that a user has to undertake to successfully complete the download and installation of alternative app stores or apps, as well as the various information screens displayed by Apple to the user, comply with the DMA.

This sounds like they’re going to insist that Apple make installing sideloaded apps and alternative stores a no-hassle experience. What critics see is Apple putting up obstacles to installing marketplaces or sideloaded apps just to be a dick about it and discouraging their use to keep users in the App Store. What I see are reasonable warnings for potentially dangerous software. We’ll see how that goes.

Perhaps where the EC will wind up is making app store choice like web browser choice. Force Apple to present each user with a screen listing all available app marketplaces in their country in random order, of which Apple’s own App Store is but one, just like Safari in the default browser choice screen.

3. The eligibility requirements for developers related to the ability to offer alternative app stores or directly distribute apps from the web on iPhones. The Commission will investigate whether these requirements, such as the ‘membership of good standing’ in the Apple Developer Program, that app developers have to meet in order to be able to benefit from alternative distribution provided for in the DMA comply with the DMA.

I’m not sure what this is about, given that Apple relented on allowing even Epic Games to open a store. Maybe the financial requirements? Update: OK, this is probably about the other half of the eligibility requirements to offer a marketplace, too. One way to qualify as a marketplace is to provide Apple with a €1,000,000 letter of credit. The other is to “be a member of good standing in the Apple Developer Program for two continuous years or more, and have an app that had more than one million first annual installs on iOS and/or iPadOS in the EU in the prior calendar year.” For sideloading, Apple requires that developers “Be a member in good standing of the Apple Developer Program for two continuous years or more, and have an app that had more than one million first annual installs on iOS and/or iPadOS in the EU in the prior calendar year.” Apple’s requirements are an attempt to prevent fly-by-night scammers from opening marketplaces or offering nefarious apps for sideloading. But the EC sees that as a catch-22, where the only way to become a marketplace or offer sideloading is to already be a longstanding developer in Apple’s own App Store. So the EC is, I guess, saying don’t worry about fly-by-night scammers, Apple needs to allow any new developer to offer their apps outside the App Store or to provide their own marketplace.

In parallel, the Commission will continue undertaking preliminary investigative steps outside of the scope of the present investigation, in particular with respect to the checks and reviews put in place by Apple to validate apps and alternative app stores to be sideloaded.

This pretty clearly is about Apple using notarization as a review for anything other than egregious bugs or security vulnerabilities. I complain as much as anyone about the aspects of the DMA that are vague (or downright inscrutable), but this aspect seems clear-cut. It’s a bit baffling why Apple seemingly sees notarization as an opportunity for content/purpose review, like with last week’s brouhaha over the UTM SE PC emulator. Refusing to notarize an emulator that uses a JIT is something Apple ought to be able to defend under the DMA’s exceptions pertaining to device security; refusing to notarize an emulator that doesn’t use a JIT seems clearly forbidden by the DMA.

★ Monday, 24 June 2024