The Digital Markets Act regulates gatekeepers (large digital platforms that provide an important gateway between business users and consumers, whose position can grant them the power to create a bottleneck in the digital economy). Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft were designated by the European Commission as gatekeepers in September 2023, and were required to fully comply with all DMA obligations by 7 March 2024.
The Commission has opened non-compliance investigations into Alphabet’s rules on steering in Google Play and self-preferencing on Google Search, Apple’s rules on steering in the App Store and the choice screen for Safari and Meta’s “pay or consent model”.
In addition, the Commission has launched investigatory steps relating to Apple’s new fee structure for alternative app stores and Amazon’s ranking practices on its marketplace.
Finally, the Commission has ordered gatekeepers to retain certain documents to monitor the effective implementation and compliance with their obligations.
Alphabet’s and Apple’s steering rules
The Commission is assessing if the measures implemented by Alphabet and Apple in relation to their obligations pertaining to app stores breach the DMA. Article 5(4) of the DMA requires gatekeepers to allow app developers to “steer” consumers to offers outside the gatekeepers’ app stores, free of charge. The Commission is concerned that Alphabet’s and Apple’s measures may not be fully compliant as they impose various restrictions and limitations. These constrain, among other things, developers’ ability to freely communicate and promote offers and directly conclude contracts, including by imposing various charges.
Alphabet’s measures to prevent self-preferencing
The Commission has opened proceedings against Alphabet, to determine whether Alphabet’s display of Google search results may lead to self-preferencing in relation to Google’s vertical search services (eg Google Shopping; Google Flights; Google Hotels) over similar rival services. The Commission is concerned that Alphabet’s measures implemented to comply with the DMA may not ensure that third-party services featuring on Google’s search results page are treated in a fair and non-discriminatory manner in comparison with Alphabet’s own services, as required by Article 6(5) of the DMA.
Apple’s compliance with user choice obligations
The Commission has opened proceedings against Apple regarding their measures to comply with obligations to (i) enable end users to easily uninstall any software applications on iOS, (ii) easily change default settings on iOS and (iii) prompt users with choice screens which must effectively and easily allow them to select an alternative default service, such as a browser or search engine on their iPhones. The Commission is concerned that Apple’s measures, including the design of the web browser choice screen, may be preventing users from truly exercising their choice of services within the Apple ecosystem, in contravention of Article 6(3) of the DMA.
Meta’s “pay or consent” model
Finally, the Commission has opened proceedings against Meta to investigate whether the recently introduced “pay or consent” model for users in the EU complies with Article 5(2) of the DMA which requires gatekeepers to obtain consent from users when they intend to combine or cross-use their personal data across different core platform services. The Commission is concerned that the binary choice imposed by Meta’s “pay or consent” model may not provide a real alternative if users do not consent, thereby not achieving the objective of preventing the accumulation of personal data by gatekeepers.
Other investigatory and enforcement steps
The Commission is also taking other investigatory steps to gather facts and information to clarify if:
- Amazon may be preferencing its own brand products on the Amazon Store in contravention of Article 6(5) of the DMA, and
- Apple’s new fee structure and other terms and conditions for alternative app stores and distribution of apps from the web (sideloading) may be defeating the purpose of its obligations under Article 6(4) of the DMA.
The Commission has also adopted five retention orders addressed to Alphabet, Amazon, Apple, Meta, and Microsoft, asking them to retain documents which might be used to assess their compliance with the DMA obligations, to preserve available evidence and ensure effective enforcement.
Finally, the Commission has granted Meta an extension of six months to comply with the interoperability obligation (under Article 7 DMA) for Facebook Messenger.
The Commission intends to conclude the investigations within 12 months.
