While the focus on self-preferencing and steering of users’ choices is unsurprising, the EC is likely to face familiar criticism over its repeated attempts to address well-worn complaints
The EC wastes no time in launching investigations through its DMA powers
On 25 March 2024, the EC announced five non-compliance investigations into Apple, Meta and Alphabet using its new Digital Markets Act (DMA) enforcement powers. The inquiries are the first launched under the DMA and come only weeks after the deadline for compliance of designated gatekeepers passed on 7 March 2024. Each investigation targets alleged non-compliance in the operations of the gatekeeper’s core platform services, which include Google Search, Google Play, the Apple App Store, Apple’s Safari browser and Meta platforms, including Facebook and Instagram. The EC has also initiated “other investigatory steps” in respect of the Amazon Store and Apple’s fee structure for alternative app stores. The targeted gatekeepers are now subject to a retention order from the EC to preserve any documentation that may serve as evidence in the investigation, which is expected to last no more than 12 months. In the event the EC finds a violation of the DMA, it could impose a fine up to 10% of a firm’s worldwide turnover and mandate additional remedies, such as banning further acquisitions or requiring the sale of some portions of the firm’s business.
Self-preferencing and steering are unsurprising primary focuses
In four of the five investigations, the EC cites suspected self-preferencing and steering behaviours as the primary cause for concern. For both the Google Play and Apple App stores, Alphabet and Apple are alleged to have restricted the ability of developers to steer consumers to offers outside of the platforms free of charge. Suspected actions include limiting the ability of these developers to freely promote external offers with consumers and directly conclude contracts. Alphabet is also accused of promoting Google services such as Google Flights and Google Shopping through Google Search, violating the requirement that third-party services be treated in a fair and non-discriminatory manner by the search engine. The EC also alleges that Apple is undermining the intent of user choice obligations through deceptive design when prompting users with a choice screen for setting their default web browser. Apple’s Safari browser therefore benefits from reduced competition. Summarily, the EC appears intent on addressing the sorts of behaviours that lock consumers into the ecosystem of services provided by gatekeeper firms, reflecting the logic employed by other jurisdictions also investigating the conduct of such firms.
Well-established complaints are also getting a new hearing under the DMA
Given some criticisms of the EU’s expansive regulatory framework for the digital economy, the inclusion of Meta’s new privacy policy and other well-worn complaints about big tech conduct could represent some fears realised in regulatory overlap. The inclusion of Meta’s ad-free paid subscription model as an item for investigation under the DMA is now the third framework under which the plan will be scrutinised in the EU, including an ongoing evaluation by the Irish Data Protection Commission under the GDPR and a request for information issued by the EC under the Digital Services Act (DSA) in March 2024. Similarly, the EC’s preliminary investigatory steps taken against Amazon with regards to the preferencing of its own products in the Amazon store are reminiscent of the set of antitrust investigations against Amazon that the EC closed in December 2022. While supporters of the bloc’s efforts to rein in the conduct of big tech may cheer the comprehensive nature of the framework, critics contend that the EC has been given too much leeway to repeatedly target the same firms and platforms.
