Cork Safety Alert

European Commission fines Apple over €1.8 billion over abusive App store rules for music streaming providers

The European Commission has fined Apple over €1.8 billion for abusing its dominant position on the market for the distribution of music streaming apps to iPhone and iPad users (‘iOS users’) through its App Store. In particular, the Commission found that Apple applied restrictions on app developers preventing them from informing iOS users about alternative and cheaper music subscription services available outside of the app (‘anti-steering provisions’). This is illegal under EU antitrust rules.

Margrethe Vestager, Executive Vice-President in charge of competition policy said:

“For a decade, Apple abused its dominant position in the market for the distribution of music streaming apps through the App Store. They did so by restricting developers from informing consumers about alternative, cheaper music services available outside of the Apple ecosystem. This is illegal under EU antitrust rules, so today we have fined Apple over €1.8 billion”.

The infringement 

Apple is currently the sole provider of an App Store where developers can distribute their apps to iOS users throughout the European Economic Area (‘EEA’). Apple controls every aspect of the iOS user experience and sets the terms and conditions that developers need to abide by to be present on the App Store and be able to reach iOS users in the EEA.

The Commission’s investigation found that Apple bans music streaming app developers from fully informing iOS users about alternative and cheaper music subscription services available outside of the app and from providing any instructions about how to subscribe to such offers. In particular, the anti-steering provisions ban app developers from:

  • Informing iOS users within their apps about the prices of subscription offers available on the internet outside of the app.
  • Informing iOS users within their apps about the price differences between in-app subscriptions sold through Apple’s in-app purchase mechanism and those available elsewhere.
  • Including links in their apps leading iOS users to the app developer’s website on which alternative subscriptions can be bought. App developers were also prevented from contacting their own newly acquired users, for instance by email, to inform them about alternative pricing options after they set up an account.

Today’s decision concludes that Apple’s anti-steering provisions amount to unfair trading conditions, in breach of Article 102(a) of the Treaty on the Functioning of the European Union (‘TFEU’). These anti-steering provisions are neither necessary nor proportionate for the protection of Apple’s commercial interests in relation to the App Store on Apple’s smart mobile devices and negatively affect the interests of iOS users, who cannot make informed and effective decisions on where and how to purchase music streaming subscriptions for use on their device.

Apple’s conduct, which lasted for almost ten years, may have led many iOS users to pay significantly higher prices for music streaming subscriptions because of the high commission fee imposed by Apple on developers and passed on to consumers in the form of higher subscription prices for the same service on the Apple App Store. Moreover, Apple’s anti-steering provisions led to non-monetary harm in the form of a degraded user experience: iOS users either had to engage in a cumbersome search before they found their way to relevant offers outside the app, or they never subscribed to any service because they did not find the right one on their own.

Fine

The fine was set on the basis of the Commission’s 2006 Guidelines on fines (see press release and MEMO).

In setting the level of the fine, the Commission took into account the duration and gravity of the infringement as well as Apple’s total turnover and market capitalization. It also factored in that Apple submitted incorrect information in the framework of the administrative procedure.

In addition, the Commission decided to add to the basic amount of the fine an additional lump sum of €1.8 billion to ensure that the overall fine imposed on Apple is sufficiently deterrent. Such lump sum fine was necessary in this case because a significant part of the harm caused by the infringement consists of non-monetary harm, which cannot be properly accounted for under the revenue-based methodology as set out in the Commission’s 2006 Guidelines on Fines. In addition, the fine must be sufficient to deter Apple from repeating the present or a similar infringement; and to deter other companies of a similar size and with similar resources from committing the same or a similar infringement.

The Commission has concluded that the total amount of the fine of over €1.8 billion is proportionate to Apple’s global revenues and is necessary to achieve deterrence.

The Commission has also ordered Apple to remove the anti-steering provisions and to refrain from repeating the infringement or from adopting practices with an equivalent object or effect in the future.

Background to the investigation

In June 2020, the Commission opened formal proceedings into Apple’s rules for app developers on the distribution of apps via the App Store. In April 2021, the Commission sent Apple a Statement of Objections, to which Apple responded in September 2021.

In February 2023 the Commission replaced the 2021 Statement of Objections by another Statement of Objections clarifying the Commission’s objections, to which Apple responded in May 2023.

Procedural background

Article 102 of the TFEU and Article 54 of the European Economic Area Agreement prohibit the abuse of a dominant position.

Market dominance is, as such, not illegal under EU antitrust rules. However, dominant companies have a special responsibility not to abuse their powerful market position by restricting competition, either in the market where they are dominant or in separate markets.

Fines imposed on companies found in breach of EU antitrust rules are paid into the general EU budget. These proceeds are not earmarked for particular expenses, but Member States’ contributions to the EU budget for the following year are reduced accordingly. The fines therefore help to finance the EU and reduce the burden for taxpayers.

In accordance with the EU-UK Withdrawal Agreement, the EU continues to be competent for this case, which was initiated before the end of the transition period (“continued competence case”) for the UK. The EU will reimburse the UK for its share of the amount of the fine collected by the EU once the fine has become definitive.

More information on this case will be available under the case number AT.40437 in the public case register on the Commission’s competition website, once confidentiality issues have been dealt with.

Action for damages

Any person or company affected by anti-competitive behaviour as described in this case may bring the matter before the courts of the Member States and seek damages. The case law of the Court of Justice of the European Union and Regulation 1/2003 both confirm that in cases before national courts, a Commission decision constitutes binding proof that the behaviour took place and was illegal. Even though the Commission has fined the company concerned, damages may be awarded by national courts without being reduced on account of the Commission fine.

The Antitrust Damages Directive makes it easier for victims of anti-competitive practices to obtain damages. More information on antitrust damages actions, including a practical guide on how to quantify antitrust harm, is available here.

Apples Response:

CUPERTINO, CALIFORNIA Today, the European Commission announced a decision claiming the App Store has been a barrier to competition in the digital music market. The decision was reached despite the Commission’s failure to uncover any credible evidence of consumer harm, and ignores the realities of a market that is thriving, competitive, and growing fast.
The primary advocate for this decision — and the biggest beneficiary — is Spotify, a company based in Stockholm, Sweden. Spotify has the largest music streaming app in the world, and has met with the European Commission more than 65 times during this investigation.
Today, Spotify has a 56 percent share of Europe’s music streaming market — more than double their closest competitor’s — and pays Apple nothing for the services that have helped make them one of the most recognisable brands in the world. A large part of their success is due to the App Store, along with all the tools and technology that Spotify uses to build, update, and share their app with Apple users around the world.
We’re proud to play a key role supporting Spotify’s success — as we have for developers of all sizes, from the App Store’s earliest days.

The App Store Journey

Since the App Store launched more than 15 years ago, Apple has had two simple goals: creating a safe and trusted marketplace for our users, and an incredible business opportunity for developers. That approach seems simple, but the app economy it inspired helped drive one of the fastest growth curves in the history of technology.
Today, developers compete on a level playing field on the App Store. Apps are reviewed according to a comprehensive set of rules, which are designed to protect our users. And meeting those rules means developers of all sizes can reach more than a billion devices around the world.
Over time, the App Store has offered developers even more value. But the vast majority of developers — about 86 percent — never pay Apple a commission.
Today, there are just two circumstances where a developer on the App Store pays Apple a commission. That’s when a user buys a paid app from the App Store or an in-app digital good or service — like a subscription or a power-up in a game.
If a developer sells physical goods, serves ads in their app, or just shares an app for free, they don’t pay Apple anything. The same is true if a developer sells a subscription on the web for users to buy, before they use it in an app on their device. Music app developers can even include information about other offers available outside of their app, along with a link directing users to a website to create and manage their account.
Over time, the App Store has helped developers of all sizes build successful businesses and reach people around the world. And few companies embody that story better than Spotify.

Spotify’s Dominant Share of the Market

Starting out as a small startup in Stockholm, Sweden, Spotify has grown their company into the largest digital music business in the world. They have a more than 50 percent share of the European market, and on iOS, Spotify has an even higher share than they do on Android.
But that’s just part of the picture, because Europe’s digital music market has absolutely exploded. Companies compete for new customers. Consumers have many options to choose from. And last year, there were nearly 160 million subscribers — up from 25 million in 2015 — a staggering 27 percent growth rate per year.
Companies like Google, Amazon, Deezer, SoundCloud, and Apple compete for customers every day — but Spotify stands at the top.

Spotify Pays Apple Nothing

Despite that success, and the App Store’s role in making it possible, Spotify pays Apple nothing. That’s because Spotify — like many developers on the App Store — made a choice. Instead of selling subscriptions in their app, they sell them on their website. And
Apple doesn’t collect a commission on those purchases.
All told, the Spotify app has been downloaded, redownloaded, or updated more than 119 billion times on Apple devices. It’s available on the App Store in over160 countries spanning the globe. And there are many more ways Apple creates value for Spotify, at no cost to their company:
  • Our engineering helps ensure that Spotify’s apps can work seamlessly with Siri, CarPlay, Apple Watch, AirPlay, Widgets, and more.
  • Like every developer, Spotify can access Apple’s more than 250,000 APIs — and uses 60 of our frameworks — so their apps can connect with Bluetooth, send notifications, play audio in the background of a user’s device, and more.
  • Spotify has used our beta-testing tool, TestFlight, for almost 500 versions of their app to experiment with new features and capabilities.
  • Our App Review team has reviewed and approved 421 versions of the Spotify app — usually with same-day turnaround — and frequently expedites reviews at Spotify’s request.
It takes continuous effort and a lot of investment for Apple to make the tools, the technology, and the marketplace that Spotify uses every day. We’ve even flown our engineers to Stockholm to help Spotify’s teams in person. And the result is that when a user opens the Spotify app, listens to music on their commute, or asks Siri to play a song from their library, everything just works. And again — Spotify pays Apple nothing.
When it comes to doing business, not everyone’s going to agree on the best deal. But it sure is hard to beat free.

Spotify Wants More

But free isn’t enough for Spotify. They also want to rewrite the rules of the App Store — in a way that advantages them even more.
Like many companies, Spotify uses emails, social media, text messages, web ads, and many other ways to reach potential customers. Under the App Store’s reader rule, Spotify can also include a link in their app to a webpage where users can create or manage an account.
We introduced the reader rule years ago in response to feedback from developers like Spotify. And a lot of reader apps use that option to link users to a webpage — from e-readers to video streaming services. Spotify could too — but they’ve chosen not to.
Instead, Spotify wants to bend the rules in their favour by embedding subscription prices in their app without using the App Store’s In-App Purchase system. They want to use Apple’s tools and technologies, distribute on the App Store, and benefit from the trust we’ve built with users — and to pay Apple nothing for it.
In short, Spotify wants more.

Spotify’s Coordination with the European Commission

In 2015, Spotify started working with the European Commission on an investigation with little grounding in reality. They claimed the digital music market had stalled, and that Apple was holding competitors back. Unfortunately for their case, Spotify continued to grow — and thanks in part to the App Store, eclipsed every other digital music business in the world.
Over the next eight years, and more than 65 meetings with Spotify, the European Commission has tried to build three different cases. With every pivot, they’ve narrowed the scope of their claims — but each theory has had a couple of features in common:
  • No evidence of consumer harm: European consumers have more choices than ever in a digital music market that’s grown exponentially. In just eight years, it’s gone from 25 million subscribers to almost 160 million — with more than 300 million active listeners — and Spotify has been the biggest winner.
  • No evidence of anti-competitive behavior: Eight years of investigations have never yielded a viable theory explaining how Apple has thwarted competition in a market that is so clearly thriving.
The European Commission is issuing this decision just before their new regulation — the Digital Markets Act (DMA) — comes into force. Apple is set to comply with the DMA in days, and our plans include changes to the rules challenged here. What’s clear is that this decision is not grounded in existing competition law. It’s an effort by the Commission to enforce the DMA before the DMA becomes law.
The reality is that European consumers have more choices than ever. Ironically, in the name of competition, today’s decision just cements the dominant position of a successful European company that is the digital music market’s runaway leader.

What’s Next?

Apple has been a part of Europe for over 40 years, and today, we support more than 2.5 million jobs across the continent. We’ve helped markets thrive, promoting competition and innovation at every turn — and the App Store is an important part of that story. So while we respect the European Commission, the facts simply don’t support this decision. And as a result, Apple will appeal.
The digital music market is a great example of the app economy at work. After all, over the App Store’s 15 years, a simple phrase — there’s an app for that — has become a universal truth. And today, behind every app is a wildly successful company or an aspiring entrepreneur chasing a dream.
Every day, teams at Apple work to keep that dream alive. We do it by making the App Store the safest and best experience for our users. We do it by giving developers the means to make incredible apps. Most of all, we do it because apps have an incredible capacity to drive innovations that empower people and enrich their lives.

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