The Comma That Might Cost Apple Billions in Europe

Jérôme Marin, writing at Cafétech:

The disagreement between Apple and Brussels centers on Article 5.4. In its English version, the article states that the gatekeeper — the term used by the Commission for the seven major tech companies subject to the DMA — “shall allow business users, free of charge, to communicate and promote offers, including under different conditions […], and to conclude contracts with those end users.”

This lengthy sentence creates ambiguity: what exactly does “free of charge” apply to? Apple claims it only applies to “communicate” and “promote,” meaning the right to insert redirect links in an app. But not to “conclude contracts,” meaning making purchases. Based on that, Apple argues it can still charge commissions on those external transactions.

The European Commission interprets it differently: contract conclusion must also be free of charge. It relies on the comma before the phrase “and to conclude contracts,” turning the sentence into an “enumeration.” “That ‘free of charge’ applies to all that is being enumerated after”, it explains in its detailed decision sent to Apple as part of the €500 million fine, which was made public last week.

“In other words, the price for app developers to pay [for external purchases] is zero,” writes the Commission. However, its case could be weakened by inconsistencies in the French and German translations of the text, which it acknowledges are “ambiguous.” Still, “other linguistic versions leave no room for interpretation,” notes Brussels.

I understand why EU laws are published in multiple languages, but it’s wild that that can create possible loopholes like this. But it seems rather obvious what the EC’s intention was here, and it wasn’t for Apple to charge commissions — let alone steep commissions — on transactions that take place outside the app after users tap a link to the web. If I were one of Apple’s lawyers, I’d argue about the placement of a comma too, and what it implies about what “free of charge” applies to. But the EC’s intentions are obvious. It’s not really about a comma.

On this particular issue Apple seems to be facing the exact same pushback in the EU as in the US: their anti-steering rules in the App Store aren’t legal.

★ Thursday, 5 June 2025