Apple Kills Epic’s Plans to Bring Back ‘Fortnite’ in the EU

A few weeks ago, it seemed that Apple and Epic Games had reached some sort of detente in their longstanding war over Apple’s control of the App Store. However, now it seems that Apple has reversed course and decided to once again boot Epic Games off the playing field.

Apple’s decision to reinstate Epic Games’ developer account last month came as quite a shock, considering it had been terminated with prejudice in 2020 after Epic declared war by blatantly breaching the terms of its agreements with Apple. This was done as a pretense to filing a lawsuit to try and free Fortnite from Apple’s commissions, with the end game of being able to offer its Epic Games store as an alternative marketplace for iPhone and iPad users.

At the time, it was presumed that Apple’s hand was at least somewhat forced by the European Union’s Digital Markets Act (DMA), which requires Apple to embrace methods of app distribution outside of the App Store. While it’s not the full sideloading that some had hoped for, Apple is opening up alternative app marketplaces in the 27 EU countries, and Epic Games was ready to be the first in line.

Although the DMA doesn’t explicitly require Apple to let Epic Games back onto the iPhone, the company seemingly decided it would be a good idea not to rock the boat too much. Even Epic CEO Tim Sweeney conceded that it was a “good faith move” on the company’s part, despite his harsh criticisms of Apple’s EU plans.

Epic Is Out Again

Unfortunately, that “good faith” gesture doesn’t appear to have lasted long on Apple’s part. Epic Games announced earlier today that it’s once again been turfed from the Apple Developer program in what it considers a “serious violation” of the DMA.

Apple didn’t immediately comment on what prompted this decision. However, Epic published a blog post sharing an email thread from February 23 between Apple Fellow Phil Schiller, who effectively remains at the helm of the App Store, and Tim Sweeney. In the exchange, which appears to start with a message from Schiller, the former Apple exec asks Sweeney to explain why Apple should trust Epic after it “deliberately violated Apple’s rules” in 2020 and offered more recent “colorful criticisms” of Apple’s DMA compliance plan that suggest it’s likely to do so again.

In the past, Epic has entered into agreements with Apple and then broken them. For example, you testified that Epic Games, Inc. entered into the Developer Program with full understanding of its terms, and then chose to intentionally breach the agreement with Apple. You also testified that Epic deliberately violated Apple’s rules, to make a point and for financial gain. More recently, you have described our DMA compliance plan as “hot garbage,” a “horror show,” and a “devious new instance of Malicious Compliance.” And you have complained about what you called “Junk Fees” and “Apple taxes.”

Your colorful criticism of our DMA compliance plan, coupled with Epic’s past practice of intentionally violating contractual provisions with which it disagrees, strongly suggest that Epic Sweden does not intend to follow the rules. Another intentional breach could threaten the integrity of the iOS platform, as well as the security and privacy of users.

You have stated that allowing enrollment of Epic Games Sweden in the Developer Program is “a good faith move by Apple.” We invite you to provide us with written assurance that you are also acting in good faith, and that Epic Games Sweden will, despite your public actions and rhetoric, honor all of its commitments. In plain, unqualified terms, please tell us why we should trust Epic this time. Phil Schiller

Sweeney’s response was short but conciliatory. He claimed that his company was acting in good faith and would comply with the terms of all its agreements with Apple.

Thanks for reaching out. Epic and its subsidiaries are acting in good faith and will comply with all terms of current and future agreements with Apple, and we’ll be glad to provide Apple with any specific further assurances on the topic that you’d like. Tim Sweeney

In a press briefing reported on by The Verge, Sweeney said Epic received no further communication from Schiller after his reply. Despite saying he would provide “any assurance they’d like,” Apple decided that wouldn’t be enough. The next correspondence was a letter from Apple’s lawyers to Epic’s lawyers to inform them that “Apple has, effective immediately, terminated the Developer Program membership of Epic Games Sweden AB.”

In the letter, Apple’s law firm states that Sweeney’s response was insufficient, curt, and not credible. Sweeney offered only “minimal assurances” that seemed quite insincere as the Epic CEO continued to publicly attack Apple. Based on this, Apple is unconvinced that Epic is acting in good faith and believes that it may even plan to use its new developer account manipulatively.

Mr. Sweeney’s response to that request was wholly insufficient and not credible. It boiled down to an unsupported “trust us.” History shows, however, that Epic is verifiably untrustworthy, hence the request for meaningful commitments. And the minimal assurances in Mr. Sweeney’s curt response were swiftly undercut by a litany of public attacks on Apple’s policies, compliance plan, and business model. As just one example: https://x.com/TimSweeneyEpic/status/1762243725533532587?s=20. Moreover, a recent submission in the Australian litigation suggests that Epic Games Sweden AB is part of a global effort to undermine or evade Apple’s rules. Apple is rightly concerned that Epic Games Sweden AB does not intend to adhere to its contractual commitments to Apple and is in fact a vehicle to manipulate proceedings in other jurisdictions.

Oddly, the tweet cited as an example is relatively innocuous compared to some of the vitriol that Sweeney has previously leveled at Apple:

Nevertheless, Apple feels that it’s well within its rights to terminate Epic’s developer account (again), despite the provisions of the DMA, as it considers this a simple matter of breach of contract of the prior developer agreement and says it has no reason to believe Epic will behave any better if given a second chance, as it explained in a statement released to the media today:

Comment

Epic’s egregious breach of its contractual obligations to Apple led courts to determine that Apple has the right to terminate ‘any or all of Epic Games’ wholly owned subsidiaries, affiliates, and/or other entities under Epic Games’ control at any time and at Apple’s sole discretion.’ In light of Epic’s past and ongoing behavior, Apple chose to exercise that right. Apple

Epic Games will undoubtedly fight this issue in the EU courts. While US courts have upheld Apple’s rights to terminate the developer agreement, the EU might have a different take on the matter, especially if it believes Apple is making its decision for the wrong reasons.