EU DMA architect says Apple seems to want to be fined for non-compliance

A Member of the European Parliament who worked on the EU's Digital Markets Act says Apple banning Epic Games is is weird, and so is likely to mean it becomes the first Big Tech firm to be fined under the new law.

The EU has already officially asked Apple to explain itself over refusing to allow Epic Games to create a rival App Store despite the DMA's rules. Now a German MEP who is not involved with enforcement, but did work on the DMA, says Apple is likely to be investigated for non-compliance.

German MEP Andreas Schwab, who led the negotiations that finalized the DMA on behalf of the EU Parliament, says that makes Apple a likely first target for non-compliance.

"[This issue with Epic] gives me a very clear expectation that they want to be the first," German MEP Andreas Schwab told Wired. "Apple's approach is a bit weird on all this and therefore it's low hanging fruit."

Schwab has no role in DMA enforcement.

App Store changes because of the DMA, and EU hypocrisy

Apple has repeatedly said that it has made its changes to the App Store and the new iOS 17.4 while talking with the EU. Consequently the EU knows everything it is doing, and the implication is that Apple believes it approves or would have said so.

The EU may now be saying so. "Under the DMA, there is no room for threats by gatekeepers to silence developers," said the EU's Thierry Breton on Twitter/X.

"I have asked our services to look into Apple's termination of Epic's developer account as a matter of priority," he continued.

Apple's refusal to allow Epic Games a developer account in order to make a rival app store appears far from weird, however. Most of the detail that has been made public concerning the refusal has come via Epic Games, but even its cherry-picked quotes seem to back Apple.

Epic Games originally claimed to have been unexpectedly banned from the App Store in 2020. However, it soon revealed that the ban was the result of a deliberate campaign of breaking its App Store contract.

Consequently, Apple reportedly asked Epic Games what reassurances it could give that it would not break any new contract. Epic's response is said to have effectively boiled down to nothing more than "trust me."

Apple chose not to. There's no threat, and it's bizarre that Breton says that there is. Apple made a business decision because of a blatant and admitted violation of contract.

Epic Games will seemingly not be satisfied until it has completely free use of Apple's technology, and completely free access to Apple's customers. It's never going to get that, but it has the EU's ear and it's going to keep complaining.

Of course, Epic Games has the right to complain, whether or not its complaints have merit. The European Union does not have quite the same laws about the freedom of speech of companies as the US does, but the European Court of Human Rights has repeatedly defended the right of firms to say what it describes as "commercial speech."

But if that means Epic Games, Spotify or anyone else can say what they like about Apple, it works the other way. Part of what MEP Schwab says is "a bit weird" about Apple, for instance, is that the company publicly said that Epic Games is "verifiably untrustworthy."

From a contractual standpoint, as it applies to Apple, Epic is untrustworthy. It broke its contract with Apple willingly and with premeditation to try to get on the public's side, and the gambit failed. And, when Apple asked directly what assurances that they have that Epic would behave this time, Epic's CEO exercised his own free speech and gave a non-answer.

Free speech for Epic, but not for Apple, apparently.

For its part, the European Union is aiming to protect the peoples of its 27 member countries. It is laudable that it is working to prevent Big Tech firms simply doing what they like, and it is impressive that the EU has passed the DMA into law while other nations are still debating what to do.

However, the EU's implementation of its laws against some Big Tech firms seem to be only of help to other Big Tech firms. Epic Games could benefit, for instance, and Spotify has seen its spurious complaints lead to the EU fining Apple $2 billion over Apple Music — despite Spotify holding well over 50% of the EU streaming market, and Apple in third or fourth behind it, with half the market share.