UK antitrust case versus Apple's browser dominance dies on a technicality

The UK Competition and Markets Authority (CMA) announced in November that it would investigate the dominance of Apple and Google in the mobile browser market, with a focus on mobile gaming. In particular, the CMA wanted to examine Apple's decision to restrict cloud gaming apps in the App Store.

Apple said in its appeal that because the CMA started the investigation too late, it lacked the authority to proceed. Timothy Otty, the company's lawyer, argued that the investigation should have happened in June 2022 when the CMA published a report on mobile ecosystems, which found that the two tech giants had an "effective duopoly."

On Friday, the Competition Appeal Tribunal (CAT) agreed with Apple's argument, saying, "it might well be said that the CMA erred in law" when it didn't take action after its June report.

Apple forbids cloud streaming apps from the App Store unless each game has a separate app for content review. So, developers can create an app to help users sign up for their service and find games, but they can't include the games inside one app.

The CMA also mentioned "suggested underinvestment in its browser technology" in its conclusion as another factor that adds costs for developers, leading them to create mobile apps instead of streaming cloud games inside Safari.

Apple doesn't restrict cloud gaming within Safari though, and only imposes restrictions in the App Store.

Apple's hand might be forced

But despite Apple's victory, the European Union's Digital Markets Act will make significant changes in March 2024, including requiring that companies like Apple open their platforms to allow third-party app stores. The Digital Markets Act entered into force in November 2022 and will be applicable on May 2, 2023.

Many companies had supported the CMA investigation, including DuckDuckGo, the Electronic Frontier Foundation, Meta, Microsoft, Mozilla, and Vodaphone. Microsoft is planning a mobile gaming store for its Xbox Game Pass service, for example.

The company hopes to challenge Apple and Google with its gaming store, and a series of pledges that would make its mobile store more open than the App Store. The commitments include letting all developers access the store and offer their payment systems to users, which App Store rules also forbid.

Apple says that not allowing rival app shops in its operating systems is due to security and privacy concerns. At the Viva Tech conference in Europe in June 2021, Tim Cook discussed various subjects, including customer safety.

"I mean, you look at malware as an example, and Android has 47 times more malware than iOS," he said. "Why is that? It's because we've designed iOS in such a way that there's one App Store and all of the apps are reviewed prior to going on the store."