EU Says Apple Wants to ‘Be the First Target for Non-Compliance’ with the DMA
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Earlier this week, Apple fired a shot across the bow of the European Union’s Digital Markets Acts when it slammed the door on Epic’s plans to start its own app marketplace and return Fortnite to the iPhone.
While things appeared to have been cooling off in the long-running war between Apple and Epic Games when Epic’s European subsidiary, based in Sweden, managed to open a developer account last month, it turns out that was a mistake that Apple’s senior executives quickly “corrected.”
At the time, Epic CEO Tim Sweeney praised Apple for its “good faith move […] amidst our cataclysmic antitrust battle.” However, it later turned out that Apple’s upper echelons had never blessed the opening of a developer account for Epic Games Sweden AB — the company simply applied for one and was approved like any other developer.
Unfortunately, once the matter came to the attention of Apple Fellow and App Store oligarch Phil Schiller, Epic received a strongly worded email that outlined Epic’s past misdeeds and closed with: “In plain, unqualified terms, please tell us why we should trust Epic this time.”
Sweeney responded by insisting that his company was acting in good faith and offered to provide any “further assurances on the topic” needed to satisfy Apple. However, that offer wasn’t enough, and a week later, Epic’s lawyers received a notice of termination from Apple’s lawyers declaring Epic Games “verifiably untrustworthy” and citing Sweeney’s ongoing criticism — what it called a “litany of public attacks” — of Apple’s policies and its response to the DMA as an example of how it believes Epic is engaging in “a global effort to undermine or evade Apple’s rules.”
The European Commission Is Not Amused
At the time, a post on X/Twitter from the official Epic Games newsroom account called Apple’s decision “a serious violation of the EU’s Digital Markets Act” and pledged to “continue to fight to get back on iOS!”
Now, the European Commission (EC) is getting involved, and they’re not looking at Apple’s decision in anything even close to a favorable light. European Commissioner Thierry Breton promised that the EC will be investigating the matter, and he didn’t mince words on what he believes Apple is doing here.
While it’s understandable that Apple wanted to cite examples of Sweeney’s proselytizing against Apple as evidence of his company’s untrustworthiness, it may have been a tactical error. At this point, the EC apparently sees this as more of a “free speech” issue than anything else; Breton’s comments imply that the primary concern is Apple making threats to silence Epic’s criticism of its policies.
It also doesn’t help that of all the tweets from Sweeney that Apple’s lawyers could have cited in their letter, they picked one of the most non-confrontational things the Epic CEO has likely ever tweeted regarding Apple’s policies.
To be fair, Sweeney has been showing much more restraint in his recent public comments compared to the days when he painted Apple as an oppressive enemy of democracy, but he’s still said far harsher things than a tweet encouraging Apple to make the right decisions on how it will respond to the DMA.
In a comment to Wired, Andreas Schwab, a German Member of the European Parliament (MEP) who helped finalize the DMA, said that Apple will likely be the first target for non-compliance — and that Apple seemingly wants this fight based on the way it’s behaving.
[This] gives me a very clear expectation that they want to be the first. Apple’s approach is a bit weird on all this and therefore it’s low-hanging fruit.
German MEP Andreas Schwab, speaking with Wired
As John Gruber notes over at Daring Fireball, Apple’s muddying the waters by not focusing on Epic’s original 2020 breach of contract that got them kicked out of the developer program in the first place. While the European courts might not see it the same way the US courts did, it would still be a very reasonable position for Apple to simply declare that a company that flagrantly broke the rules doesn’t get a second chance. “If Apple wants to make that a ‘lifetime’ ban, they should just say so,” Gruber adds.
