William Gallagher
London's Court of Appeal has overturned a ruling and is allowing the UK's Competition and Markets Authority to probe into mobile browsers and gaming on iOS.
The CMA officially launched an investigation into the mobile browser dominance of both Apple and Google in November 2022. The CMA's investigation is focusing in part on cloud gaming, and in particular on Apple's alleged choice to restrict cloud gaming apps in the App Store.
In January 2023, Apple filed an appeal based partly on the timing if the CMA's investigation, and partly on the legal definition of a single word. The CMA's rules say that it "shall" follow a Market Study Notice with a Market Investigation Reference within six months.
Apple says "shall" means "must," and that based on the dates of various points in the CMA's operation, the regulator failed to meet its own six month deadline.
The UK's Competition Appeal Tribunal (CAT) agreed with Apple, writing that, "it might well be said that the CMA erred in law" by adhering to its schedule.
According to Reuters, however, that ruling has now been overturned by the Court of Appeal. Judge Nicholas Green wrote that the CAT had "lost sight [of the CMA's role] to promote competition and protect consumers."
Judge Green also wrote that if the CAT ruling were to stand, there would be "serious consequences" for the future of the regulator.
"It would mean that the CMA had no jurisdiction, even some years later, to investigate concerns into the behaviour of an undertaking such as Apple or Google," he said, "even if such concerns were objectively justified."
Sarah Cardell, CEO of the CMA, welcomed the judge's decision. "[It] gives the CMA the backing it needs to protect consumers and promote competition in [the] UK."
What happens next
Apple now has the right to appeal the new decision. Cardell says that the CMA is ready to restart its investigation "when the legal process is complete."
Until then, the CMA's investigation is on hold. Apple has not commented on whether it intends to appeal again.
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2 Comments
I think it’s a pretty safe bet Apple will appeal again. The judge didn’t actually say the CMA *didn’t* break its own rules by not getting around to the investigation in a timely fashion, just that the overall point of the CMA was more important than the restrictive time window it imposed on itself.
But if it was that important, why *didn’t* the CMA *start* its investigation within six months of the Market Study Notice, hmmm?