Frankfurter Allgemeine Zeitung (FAZ) and the Financial Times report that Fortnite and Unreal Engine maker Epic Games has filed an EU antitrust complaint against Apple. Epic is being represented by Clifford Chance (the FAZ article quotes Mr. Ashwin van Rooijen), a major global firm that has been a key player in many EU tech antitrust matters over the years.
When asked why they filed this complaint against only Apple, and not simultaneously against Google, Epic's lawyers apparently said that Apple was presently the focus of EU antitrust enforcement in this context. There is an ongoing investigation of Spotify's complaint against Apple. Both Epic and Spotify are members of the Coalition for App Fairness (CAF), an organization whose positions on app distribution Microsoft has supported publicly without joining the organization.
For proper disclosure, I am a member of the informal #AppRising movement and brought my own complaints against Apple and Google in multiple jurisdictions last month (EU case numbers: AT.40747 Apple, AT.40748 Google). I consider this kind of topic to be the single most important tech antitrust issue of the 2020s. Standard-essential patent (SEP) issues continue to be very important, but are eclipsed by the #AppRising. But the concerns raised by app developers are diverse, and just like I haven't seen Epic comment on my complaint regarding COVID-related apps, I don't want to take a position on Epic's (and others') complaints over in-app payments--which doesn't mean that I necessarily disagree, just that at this point it's too early for me to speak out on a legally complex issue.
As I just mentioned my own complaints, a few hours ago iClarified mentioned me in connection with a new rule--or maybe it's more of a clarification of an existing rule--by Apple in connection with "health pass" apps (apps that enable users to show to others, such as airport security staff, that they have been vaccinated or have recently been tested negatively). So here's a bit of a clarification from my end in the context of iClarified's report on Apple's potential clarification regarding health apps: I don't envision my own app company to offer any "health pass"-like functionality and, therefore, prefer not to comment on that category of COVID-related apps other than noting that governments--rather than private entities--should regulate health passes, such as by ensuring that only health passes with a certain stamp of approval would be recognized at airports, sports venues, and so forth.
I don't mean to comment on Epic's choice of bringing a complaint against only Apple, not Google. I'm sure they had their reasons, and it's possible they previously talked to DG COMP and made their decision based on the feedback they got.
My company, however, seeks to resolve its issue with both major platforms at the same pace. Last week's decision by the Munich I Regional Court against Google, of which I've meanwhile translated the remaining 10% I just summarized a week ago, makes it clear that "gatekeepers" (the ruling already uses that key term of the upcoming Digital Markets Act) must not disadvantage high-quality health-related offerings just because they don't come from a governmental source. My company is going to bring a lawsuit in Munich on that basis pretty soon. The Munich court's holding is very clear, and Google's rule on COVID-related Android apps is fundamentally more abusive--because it results in complete foreclosure--than its preferential treatment of a government-run health information portal by its search engine. If Google doesn't take the Munich court's holdings seriously, it will just have to be enjoined again. After filing the complaint, I will publish an English translation on this blog.
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