competition law
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The U.K.’s competition watchdog will take a deep dive look into Apple and Google’s dominance of the mobile ecosystem, it said today — announcing a market study which will examine the pair’s respective smartphone platforms (iOS and Android); their app stores (App Store and Play Store); and web browsers (Safari and Chrome).
The Competition and Markets Authority (CMA) is concerned that the mobile platform giants’ “effective duopoly” in those areas might be harming consumers, it added.
The study will be wide ranging, with the watchdog concerns about the nested gateways that are created as a result of the pair’s dominance of mobile ecosystem — intermediating how consumers can access a variety of products, content and services (such as music, TV and video streaming; fitness tracking, shopping and banking, to cite some of the examples provided by the CMA).
“These products also include other technology and devices such as smart speakers, smart watches, home security and lighting (which mobiles can connect to and control),” it went on, adding that it’s looking into whether their dominance of these pipes is “stifling competition across a range of digital markets”, saying too that it’s “concerned this could lead to reduced innovation across the sector and consumers paying higher prices for devices and apps, or for other goods and services due to higher advertising prices”.
The CMA further confirmed the deep dive will examine “any effects” of the pair’s market power over other businesses — giving the example of app developers who rely on Apple or Google to market their products to customers via their smart devices.
The watchdog already has an open investigation into Apple’s App Store, following a number of antitrust complaints by developers.
It is investigating Google’s planned depreciation of third-party tracking cookies too, after complaints by adtech companies and publishers that the move could harm competition. (And just last week the CMA said it was minded to accept a series of concessions offered by Google that would enable the regulator to stop it turning off support for cookies entirely if it believes the move will harm competition.)
The CMA said both those existing investigations are examining issues that fall within the scope of the new mobile ecosystem market study but that its work on the latter will be “much broader”.
It added that it will adopt a joined-up approach across all related cases — “to ensure the best outcomes for consumers and other businesses”.
It’s giving itself a full year to examine Gapple’s mobile ecosystems.
It is also soliciting feedback on any of the issues raised in its statement of scope — calling for responses by 26 July. The CMA added that it’s also keen to hear from app developers, via its questionnaire, by the same date.
The watchdog has previously scrutinized the digital advertising market — and found plenty to be concerned about vis-à-vis Google’s dominance there.
That earlier market study has been feeding the U.K. government’s plan to reform competition rules to take account of the market-deforming power of digital giants. And the CMA suggested the new market study, examining “Gapple’s” mobile muscle, could similarly help shape U.K.-wide competition law reforms.
Last year the U.K. announced its plan to set up a “pro-competition” regime for regulating internet platforms — including by establishing a dedicated Digital Markets Unit within the CMA (which got going earlier this year).
The legislation for the reform has not yet been put before parliament but the government has said it wants the competition regulator to be able to “proactively shape platforms’ behavior” to avoid harmful behavior before it happens” — saying too that it supports enabling ex ante interventions once a platform has been identified to have so-called “strategic market status”.
Germany already adopted similar reforms to its competition law (early this year), which enable proactive interventions to tackle large digital platforms with what is described as “paramount significance for competition across markets”. And its Federal Cartel Office has, in recent months, wasted no time in opening a number of proceedings to determine whether Amazon, Google and Facebook have such a status.
The CMA also sounds keen to get going to tackle internet gatekeepers.
Commenting in a statement, CEO Andrea Coscelli said:
Apple and Google control the major gateways through which people download apps or browse the web on their mobiles – whether they want to shop, play games, stream music or watch TV. We’re looking into whether this could be creating problems for consumers and the businesses that want to reach people through their phones.
Our ongoing work into big tech has already uncovered some worrying trends and we know consumers and businesses could be harmed if they go unchecked. That’s why we’re pressing on with launching this study now, while we are setting up the new Digital Markets Unit, so we can hit the ground running by using the results of this work to shape future plans.
The European Union also unveiled its own proposals for clipping the wings of Big Tech last year — presenting its Digital Markets Act plan in December, which will apply a single set of operational rules to so-called “gatekeeper” platforms operating across the EU.
The clear trend in Europe on digital competition is toward increasing oversight and regulation of the largest platforms — in the hopes that antitrust authorities can impose measures that will help smaller players thrive.
Critics might say that’s just playing into the tech giants’ hands, though — because it’s fiddling around the edges when more radical intervention (break ups) are what’s really needed to reboot captured markets.
Apple and Google were contacted for comment on the CMA’s market study.
A Google spokesperson said: “Android provides people with more choice than any other mobile platform in deciding which apps they use, and enables thousands of developers and manufacturers to build successful businesses. We welcome the CMA’s efforts to understand the details and differences between platforms before designing new rules.”
According to Google, the Android App Economy generated £2.8 billion in revenue for U.K. developers last year, which it claims supported 240,000 jobs across the country — citing a Public First report that it commissioned.
The tech giant also pointed to operational changes it has already made in Europe, following antitrust interventions by the European Commission — such as adding a choice screen to Android where users can pick from a list of alternative search engines.
Earlier this month it agreed to shift the format underlying that choice screen from an unpopular auction model to free participation.
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As the antitrust drumbeat continues to pound on tech giants, with Reuters reporting comments today from the U.S. Justice Department that it’s moving “full-tilt” on an investigation of platform giants including Google parent Alphabet, startups in Europe’s travel sector are dialing up their allegations of anti-competitive behavior against the search giant.
Google has near complete grip on the search market in Europe, with a regional market share in excess of 90%, according to Statcounter. Unsurprisingly, industry sources say a majority of travel bookings start as a Google search — giving the tech giant huge leverage over the coronavirus-hit sector.
More than half a dozen travel startups in Germany are united in a shared complaint that Google is abusing its search dominance in a number of ways they argue are negatively impacting their businesses.
Complaints we’ve heard from multiple sources in online travel range from Google forcing its own data standards on ad partners to Google unfairly extracting partner data to power its own competing products on the cheap.
Startups are limited in how much detail they can provide on the record about Google’s processes because the company requires advertising partners to sign NDAs to access its ad products. But this week German newspaper Handelsblatt reported on antitrust complaints from a number of local startups — including experience booking platform GetYourGuide and vacation rental search engine HomeToGo — which are accusing the tech giant of stealing content and data.
The group is considering filing a cartel complaint against Google, per its report.
We’ve also heard from multiple sources in the European travel sector that Google has exhibited a pattern of trying to secure the rights to travel partners’ content and data through contracts and service agreements.
One source, who did not wish to be identified for fear of retaliation against their business, told us: “Each travel partner has certain specialities in their business model but overall the strategy of Google has been the same: Grab as much data from your partners and build competing products with that data.”
This is now a very familiar complaint against Google. Crowdsourced reviews platform Yelp has been accusing the tech giant of stealing content for years. More recently, Genius got creative with a digital watermark that caught Google redhanded scraping lyrics content from its site which it pays to license (but Google does not). As Lily Allen might put it, it’s really not okay.
Last month’s congressional antitrust subcommittee hearing kicked off with exactly this accusation too — as chair David Cicilline barked at Google and Alphabet CEO Sundar Pichai: “Why does Google steal content from honest businesses?” Pichai dodged the question by claiming he doesn’t agree with the characterization. But for Google and parent Alphabet there’s no dodging the antitrust drumbeat pounding violently in the company’s backyard.
Based on this exchange, it seems like Google CEO Sundar Pichai *really* does not want to answer questions about local search. Perhaps because there are no good answers?
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— Luther Lowe (@lutherlowe) July 29, 2020
In Europe, Google’s business already has a clutch of antitrust enforcements against it — starting three years ago, in a case which dated back six years at that point, with a record-breaking penalty for anti-competitive behavior in how it operated a product search service called Google Shopping. EU enforcements against Android and AdSense swiftly followed. Google is appealing all three decisions, even as it continues to expand its operations in lucrative verticals like travel.
The Commission’s 2017 finding that Google is dominant in the regional search market carried what lawmakers couch as a “special responsibility” to avoid breaching the bloc’s antitrust rules in any market in which Google plays. That finding puts the travel sector squarely in the frame, although not yet under formal probe by EU regulators (although they have opened an active probe of Google’s data collection practices, announced last year).
EU regulators are also examining a range of competition concerns over its proposed acquisition of Fitbit, delaying the merger while they consider whether the deal would further entrench Google’s position in the ad market by giving it access to a trove of Fitbit users’ health data that could be used for increased ad personalization.
But so far, on travel, the Commission has been keeping its powder dry.
Yet for around a decade the tech giant has been building out products that directly compete for travel bookings in growth areas like flight search. More recently it’s added hotels, vacation rentals and experiences — bringing its search tool into direct competition with an increasing range of third-party booking platforms which, at least in Europe, have no choice but to advertise on Google’s platform to drive customer acquisition.
One key acquisition underpinning Google’s travel ambitions dates back to 2010 — when it shelled out $700 million for ITA, a provider of flight information to airlines, travel agencies and online reservation systems. The same year it also picked up travel guide community, Ruba.
Google beat out a consortium of rivals for ITA, including Microsoft, Kayak, Expedia and Travelport, which relied on its data to power their own travel products — and had wanted to prevent Google getting its hands on the data.
Back then travel was already a huge segment of search and online commerce. And it’s continued to grow — worth close to $700 billion globally in 2018, per eMarketer (although the coronavirus crisis is likely to impact some recent growth projections, even as the public health crisis accelerates the industry’s transition to digital bookings) — all of which gives Google huge incentive to carve itself a bigger and bigger share of the pie.
This is what Google is aiming to do by building out ad units that cater to travelers’ searches by offering flights, vacation rentals and trip experiences, searchable without needing to leave Google’s platform.
Google defends this type of expansion by saying it’s just making life easier for the user by putting sought for information even closer to their search query. But competitors contend the choices it’s making are far more insidious. Simply put, they’re better for Google’s bottom line — and will ultimately result in less choice and innovation for consumers — is the core argument. The key contention is Google is only able to do this because it wields vast monopoly power in search, which gives it unfair access to travel rivals’ content and data.
It’s certainly notable that Alphabet hasn’t felt the need to shell out to acquire any of the major travel booking platforms since its ITA acquisition. Instead, its market might allow it to repackage and monetize rival travel platforms’ data via an expanding array of its own vertical travel search products.
One of the German consortia of travel startups with a major beef against Google is Berlin-based HomeToGo. The vacation rentals platform confirmed to TechCrunch it has filed an antitrust complaint against the company with the European Commission.
It told us it’s watched with alarm as Google introduced a new ad unit in search results which promotes a vacation rental search and booking experience — displaying property thumbnails, alongside locations and prices plotted on a map — right from inside Google’s platform.
Screengrab showing Google vacation rental ad unit, populated with content from a range of partners
Discussing the complaint, HomeToGo CEO and co-founder, Dr Patrick Andrae, told us: “Due to the monopoly Google has in horizontal search, just by having this kind of access [to the vast majority of European Internet searchers], they’re so top of the funnel that they theoretically can go into any vertical. And with the power of their monopoly they can turn on products there without doing any prior investment in it.
“Anyone else has to work a lot on SEO strategies and these kind of things to slowly go up in the ranking but Google can just snap its fingers and say, basically, tomorrow I want to have a product.”
The complaint is not just that Google has built a competing ad product in vacation rentals but — following what has become a standard colonizing playbook for seemingly any vertical area Google sees is grabbing traffic — its packaging of the competing product is so fully featured and eye-catching that it results in greater prominence for Google’s ad versus organic search results (or indeed paid ad links) where rivals may appear as plain-old blue links.
“They create this giant, colorful super CTA [call-to-action], as we call it — this one-box thing — where everything is clickable and leads you into the Google product,” said Andrae. “They explain that it’s better for the user experience but no one ever said that the user wants to have a one-box there from Google. Or why shouldn’t it be a one-box from HomeToGo? Or why shouldn’t it be a one-box in the flight world from Kayak? Or in the hotel world from Trivago? So why is it just the Google product that’s colorful, nice, and showing up?”
Andrae argues that the design of the unit is intended to give the user the impression that “Google has everything there,” on its platform. So, y’know, why go looking elsewhere for a vertical search engine?
He also points out that the special unit is not available to competitors. “You cannot buy it,” he said. “So even if you would like to have this prominent kind of placement you cannot buy that as a third-party company. Even if you would like to pay money for it — I’m not talking about being in the product itself, that’s another topic — but just having the same kind of advertisement, because it is what they do — they advertise their own product there for free — and this is our complaint.”
In 2017, when the Commission slapped Google with the first record-breaking penalty over its search comparison service — finding it had systematically given prominent placement to its own comparison shopping service over and above rival services in organic search results — competition chief Margrethe Vestager disclosed it had also received complaints about Google’s behavior in the travel sector.
Asked about the sector’s concerns now, some three years later, a Commission spokeswoman told us it’s “monitoring the markets concerned” — but declined to comment on any specific gripes.
Here’s another complaint: GetYourGuide, a Berlin-based travel startup that’s created a discovery and booking platform for travel tours and experiences, has similar concerns about Google’s designs on travel experience booking — another travel segment the tech giant is moving into via its own eye-catching ad units flogging experiences.
“They want to create experience products now directly on Google search itself, with the aim that ultimately people can book these type of things on Google,” said GetYourGuide CEO and co-founder Johannes Reck. “What Google tries to do now is they try to get [travel startups’] content and our data in order to create new competitive products on Google.”
The startup is unhappy, for example, that a “Things to do” ad product Google shows in its search results doesn’t link to GetYourGuide’s own search page — which would be the equivalent and competing third party product.
“Google will not allow us to link them into our search but only into the details page so the customer sees even less of our brand,” he said. “Or in Maps, for instance, if you go to Eiffel Tower and press to book tickets you don’t see any of GetYourGuide despite us fulfilling that order.”
He also rejects Google’s claim against this sort of complaint that it’s simply “doing the right thing for the user” by not linking them out to the rival platform. “We do know from our data that users convert better and spend more time on our site and have higher engagement rates when we link them into our search and then deeper down into the funnel,” he told TechCrunch. “What Google is saying is not that it serves the user — it serves Google and it serves their profits. Because the deeper down the funnel that you link, the user will either buy or they will bounce back to Google and search for the next product. If you link into searches — if you don’t verticalize as much — then the user will end up in a different ecosystem and might not bounce back to Google.”
“As a partner [of Google] you have limited choice to participate [in its ad products]. You do need to give Google that content and then Google will try to move as many of the customers to them,” Reck added. “I don’t think there ever will be a world where booking.com or Expedia or GetYourGuide will disappear — rather our brands will start to disappear.
“That is something that I think ultimately is bad for the customer and only serves Google, again, because the customer will, in the long run, have no other choice and no other visibility on how he can get to choice than to go through Google because our brands will basically be hidden behind a Google wall. That will turn Google firmly away from what their original mission was… to steer people to the most relevant content on the web… Now they are trying to be completely the opposite; they’re trying to be the Amazon or Alibaba of travel and try to keep and contain people in their ecosystem.”
During the congressional antitrust subcommittee hearing last month Pichai claimed Google faces fierce competition in travel. Again, Reck contends that’s simply not true. “In Europe more than 75% of travelers go to Google to search for travel and all those users are free,” he said. “Everyone else in the travel industry pays Google top dollar… for these queries. Which competition exactly is he referring to?”
“[Pichai] then claimed that they’re not leveraging partners’ content — that’s not accurate. If you look at Google if you want to be in the top results these days you either pay or you give them data so that they can build their own products into search.”
“This dates back 10 years now when they acquired ITA software, which is the leading data provider for flights,” Reck added. “They’ve just paved their way into travel. I think their intent is very clear at this point that they have no interest in their partners — or their customers for that matter, who like the choice that’s being offered on Google.
“What they want to morph into, basically, is to turn Google into the Amazon of travel where everyone else may be a content provider or a fulfillment agent but the consumer has no choice but to go through Google. I think that is the key intent here. They want to limit consumer choice. And they want to monopolise the space. We don’t want that and we will fight that. And if that means we need to go to the EU Commission to protect our and the customers’ interests then we’ll do that and we’re currently reviewing that option.”
The looming harm for consumers around reduced choice could manifest in poorer customer service, which is an area vertical players tend to focus on — whereas Google, as a platform funnel, does not.
Another German travel startup — Munich-based FlixBus — was also willing to go on the record with concerns about the impact of Google’s market power on the sector, despite not being in the same position as its business is not an aggregator.
Nonetheless, FlixBus founder and CEO Jochen Engert called on regional lawmakers to act against what he described as Google’s “systematic abuses” of market dominance.
“We call on the politicians in Germany and the EU to now work for fair competition on the internet. It must be forbidden that monopolistic companies like Google abuse their market power, especially in times of crisis, and prevent competition for the benefit of the customer due to their dominance,” he told us. “Google systematically abuses its dominant market position to seal off access to customers from competitors and gets away with it time and again. It is only a matter of time before other industries and business models, in addition to travel, hotel and flight bookings, are permanently threatened.
“For FlixMobility [FlixBus’ parent company] as an internationally positioned market leader with its own platform, technology and our unique content, the situation is more relaxed than for smaller startups or those which also aggregate content such as Google. Nevertheless, in our opinion Google should be obliged to list and market its own products in search results on an equal footing with comparable offers. Here regulation must not stand by and watch for too long, but must react before Google irretrievably controls customer access and excludes competition.”
GetYourGuide’s Reck expressed hope that German lawmakers might be able to offer more expeditious relief to the sector than the European Commission — whose competition investigations typically grind through the details for years.
“The German government is actually very alert at this point in time,” he said. “They’re currently working on a new competition legislation that they will put in place probably within the next six months. It’s already in the making — and that will also be addressed to exactly that type of behavior of global, quasi-monopolistic platforms crossing the demarcation line, moving into other fields and trying to leverage their monopoly in order to create synergies in adjacent fields and crowd out competition.”
Asked what kind of intervention he would like to see regulators make against Google, Reck suggests its business should be regulated akin to a utility — advocating for controls on data, including around the openness of data, to level the playing field.
Though he also told us he would be supportive of more radical measures, such as breaking Google up. (But, again, he says speed of intervention is of the essence.)
“If you look at all of the data that Google collects, whether that’s consumer reviews, availability from its partners, all of the content from its partners, all of the information that they have through Android, whether that’s geo-specific data, whether that is interests, whether that is contextual information, Google is training their algorithms day and night on this data, no one else can. But we all have to provide data to Google,” he said.
“That’s not a level playing field. We need to think about how we can have a more open data architecture, that obviously is compliant with our data privacy laws but where developers from anywhere can build products based on the Google platform… As a developer in travel it’s currently very hard for me to access any data from Google so I can build better products for consumers. And I think that really needs to change — Google needs to open us for us to create a more vibrant and competitive ecosystem.”
“At a national or EU level we need to have an updated legal code that allows for quick interventions,” Reck added, saying competition enforcement simply can’t carry on at the same pace as for the markets of the past. “Things are moving way too quickly for that. You need to take a completely new approach.
“As Google correctly pointed out consumer prices have fallen but falling consumer prices is the weapon in tech; offering products for free allows you to gain market share in order to crowd out competition, which again leaves less choice for the customer, so I think we need to think about how we think about tech and platforms in new ways.”
The Commission is currently consulting on whether competition regulators need a new tool to be able to intervene more quickly in digital markets. But there’s more than a trace of irony that its adherence to process means further delay as regulators question whether they need more power to intervene in digital markets to prevent tipping, instead of acting on longstanding complaints of market abuse attached to the 800-lb gorilla of internet search — with its “special responsibility” not to trample on other markets.
Reached for comment on the travel startups’ complaints, a Google spokeswoman sent us this statement:
There are now more ways than ever to find information online, and for travel searches, people can easily choose from an array of specialized sites, like TripAdvisor, Kayak, Expedia and many more. With Google Search, we aim to provide the most helpful and relevant results possible to create the best experience for users around the world and deliver valuable traffic to travel companies.
During the pandemic, we’ve been working hard with our partners in the travel industry to help them protect their businesses and look toward recovery. We launched new tools for airlines so they can better predict consumer demand and plan their routes. For hotels, we expanded our ‘pay per stay’ program globally to shift the risk of cancellation from our partners to us. And we’ve updated our search products so consumers can make informed decisions when planning future travel, further reducing the risk of cancellation.
The company did not respond to our request for a response to claims we heard that it seeks to secure rights to partners’ content and data via contracts and service agreements.
In another sign of the growing rift between Google and its travel partners in Europe, German startups in the sector banded together to press it for better terms during the coronavirus crisis earlier this year — accusing the tech giant of being inflexible over payments for ads they’d run before the crisis hit. This meant they were left with a huge hole in their balance sheets after making mass refunds for travelers who could no longer take their planned trip. But the gorilla wasn’t sympathetic, demanding full payment immediately.
Asked what happened after TechCrunch reported on their concerns at the end of April, Reck said Google went silent for a few weeks. But as soon as the travel market started picking up in Germany — and GetYourGuide decided it needed to start advertising on Google again — it reissued the demand for full payment.
GetYourGuide says it was left with no choice but to pay, given it needed to be able to run Google ads.
Reck describes the recovery package Google offered after it made the payment as “a Google recovery package” — as it was tied to GetYourGuide spending a large amount on YouTube ads in order to get a small discount.
The offer would recoup only a “fraction” of GetYourGuide’s original losses on Google ads during the peak of the COVID-19 crisis, per Reck. “YouTube obviously is not where we lost the money. We lost the money in search where we had high-intent customers, Google customers that wanted to come and shop. So that to us was [another] slap in the face,” he added.
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A framework for ensuring fairness in digital marketplaces and tackling abusive behavior online is brewing in Europe, fed by a smorgasbord of issues and ideas, from online safety and the spread of disinformation, to platform accountability, data portability and the fair functioning of digital markets.
European Commission lawmakers are even turning their eye to labor rights, spurred by regional concern over unfair conditions for platform workers.
On the content side, the core question is how to balance individual freedom of expression online against threats to public discourse, safety and democracy from illegal or junk content that can be deployed cheaply, anonymously and at massive scale to pollute genuine public debate.
The age-old conviction that the cure for bad speech is more speech can stumble in the face of such scale. While illegal or harmful content can be a money spinner, outrage-driven engagement is an economic incentive that often gets overlooked or edited out of this policy debate.
Certainly the platform giants — whose business models depend on background data-mining of internet users in order to program their content-sorting and behavioral ad-targeting (activity that, notably, remains under regulatory scrutiny in relation to EU data protection law) — prefer to frame what’s at stake as a matter of free speech, rather than bad business models.
But with EU lawmakers opening a wide-ranging consultation about the future of digital regulation, there’s a chance for broader perspectives on platform power to shape the next decades online, and much more besides.
For the past two decades, the EU’s legal framework for regulating digital services has been the e-commerce Directive — a cornerstone law that harmonizes basic principles and bakes in liabilities exemptions, greasing the groove of cross-border e-commerce.
In recent years, the Commission has supplemented this by applying pressure on big platforms to self-regulate certain types of content, via a voluntary Code of Conduct on illegal hate speech takedowns — and another on disinformation. However, the codes lack legal bite and lawmakers continue to chastise platforms for not doing enough — nor being transparent enough about what they are doing.
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Apple is under formal investigation by antitrust regulators in European Union — following a number of complaints related to how it operates the iOS App Store and also its payment offering, Apple Pay.
The Commission said today that it has concerns that conditions and restrictions applied by the tech giant may be distorting competition in a number of areas, following a preliminary probe of the issues.
Back in March 2019, European music streaming service Spotify filed an antitrust complaint against Apple — railing very publicly against what it dubbed an “Apple tax”; aka the 30% tariff the tech giant applies on accepting payments in apps on its App Store. Spotify also accused Apple of impeding its business by applying arbitrary rules — such as making it harder to offer its own users discounts.
The Commission confirmed today that it’s looking formally into whether Apple’s rules for app developers on the distribution of apps via the App Store violate EU competition rules. It said the probe focuses on Apple’s mandatory requirement that app developers use its own proprietary in-app purchase system, as well as restrictions applied on the ability of developers to inform iPhone and iPad users of alternative cheaper purchasing possibilities outside of apps.
As well as the very public complaint from Spotify, the Commission has received a similar complaint from an unnamed e-book/audiobook distributor related to the impact of the App Store rules on competition.
Two specific restrictions imposed by Apple in its agreements with companies that wish to distribute apps to users of Apple devices will be investigated, per the Commission — namely [emphasis its]:
(i) The mandatory use of Apple’s own proprietary in-app purchase system “IAP” for the distribution of paid digital content. Apple charges app developers a 30% commission on all subscription fees through IAP.
(ii) Restrictions on the ability of developers to inform users of alternative purchasing possibilities outside of apps. While Apple allows users to consume content such as music, e-books and audiobooks purchased elsewhere (e.g. on the website of the app developer) also in the app, its rules prevent developers from informing users about such purchasing possibilities, which are usually cheaper.
“Following a preliminary investigation the Commission has concerns that Apple’s restrictions may distort competition for music streaming services on Apple’s devices,” it writes in a press release. “Apple’s competitors have either decided to disable the in-app subscription possibility altogether or have raised their subscription prices in the app and passed on Apple’s fee to consumers.
“In both cases, they were not allowed to inform users about alternative subscription possibilities outside of the app. The IAP obligation also appears to give Apple full control over the relationship with customers of its competitors subscribing in the app, thus dis-intermediating its competitors from important customer data while Apple may obtain valuable data about the activities and offers of its competitors.”
Commenting in a statement, Commission EVP Margrethe Vestager — who heads up competition policy for the bloc — added: “Mobile applications have fundamentally changed the way we access content. Apple sets the rules for the distribution of apps to users of iPhones and iPads. It appears that Apple obtained a ‘gatekeeper’ role when it comes to the distribution of apps and content to users of Apple’s popular devices. We need to ensure that Apple’s rules do not distort competition in markets where Apple is competing with other app developers, for example with its music streaming service Apple Music or with Apple Books. I have therefore decided to take a close look at Apple’s App Store rules and their compliance with EU competition rules.”
Vestager’s reference to a “gatekeeper” role has specific significance as the Commission is currently consulting on updating regulations for digital platforms — including floating the possibility of ex ante regulation for platforms deemed to be gatekeepers vis-a-vis other suppliers. (In parallel, the Commission is consulting on updates to competition law that may allow it to intervene more swiftly in future, in instances where it suspects digital markets have ‘tipped’.)
Spotify welcomed the Commission’s action, writing in a statement:
Today is a good day for consumers, Spotify and other app developers across Europe and around the world. Apple’s anticompetitive behavior has intentionally disadvantaged competitors, created an unlevel playing field, and deprived consumers of meaningful choice for far too long. We welcome the European Commission’s decision to formally investigate Apple, and hope they’ll act with urgency to ensure fair competition on the iOS platform for all participants in the digital economy.
On Apple Pay, the Commission said a formal investigation of how it operates the payment tech will look at the “terms, conditions and other measures” Apple applies for integrating the payment solution in merchant apps and websites on iPhones and iPads; Apple’s limitation of access to the NFC functionality on iPhones for payments in stores; and allegations of “refusals of access to Apple Pay”.
Following a preliminary probe, the Commission said it is concerned Apple’s processes “may distort competition and reduce choice and innovation”.
It also notes that Apple Pay is the only mobile payment solution that is allowed to access NFC technology on iOS devices for making payments in stores.
“The investigation will also focus on alleged restrictions of access to Apple Pay for specific products of rivals on iOS and iPadOS smart mobile devices,” it added.
The Commission said it will carry out the investigations “as a matter of priority”, but there’s no set timeframe for how long this process might take.
EU antitrust investigations have tended to take a number of years from an announcement of a formal probe to a decision being reached. (Although, in an ongoing investigation against Broadcom, Vestager recently dusted off a tool to accelerate regulatory intervention — but as yet there’s no formal ‘statement of objections’ against Apple so it remains to be seen how this case will proceed, and whether regulators may seek to speed up any intervention.)
Reached for comment on the Commission’s announcement of the two antitrust investigations, Apple dubbed the complaints “baseless” — choosing to throw shade on the complainants by claiming these companies are after “a free ride, and don’t want to play by the same rules as everyone else”.
Here’s Apple’s statement on the two investigations in full:
Throughout our history, Apple has created groundbreaking new products and services in some of the most fiercely competitive markets in the world. We follow the law in everything we do and we embrace competition at every stage because we believe it pushes us to deliver even better results.
We developed the App Store with two goals in mind: that it be a safe and trusted place for customers to discover and download apps, and a great business opportunity for entrepreneurs and developers. We’re deeply proud of the countless developers who’ve innovated and found success through our platform. And as we’ve grown together, we’ve continued to deliver innovative new services — like Apple Pay — that provide the very best customer experience while meeting industry-leading standards for privacy and security.
It’s disappointing the European Commission is advancing baseless complaints from a handful of companies who simply want a free ride, and don’t want to play by the same rules as everyone else. We don’t think that’s right — we want to maintain a level playing field where anyone with determination and a great idea can succeed.
At the end of the day, our goal is simple: for our customers to have access to the best app or service of their choice, in a safe and secure environment. We welcome the opportunity to show the European Commission all we’ve done to make that goal a reality.
Apple has had a number of run-ins with EU regulators over the years — including a probe of its acquisition of Shazam (which was later cleared); a major investigation of ebook pricing; and a probe of tax benefits in Ireland which saw it on the hook for $15BN.
French competition regulators also recently fined the tech giant $1.2BN for anti-competitive sales tactics. It’s also been fined $27M by French regulators this year for throttling old iPhones.
This report was updated with comment from Spotify
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Qualcomm is facing fresh antitrust scrutiny from the European Commission, with the regulator raising questions about radio frequency front-end (RFFE) chips which can be used in 5G devices.
The chipmaker has been expanding into selling RFFE chips for 5G devices, per Reuters, It is encouraging buyers of its 5G modems to also buy its radio frequency front-end chips rather than buying from other vendors and integrating their hardware with its 5G modem chips.
A European Commission spokeswomen confirmed the action, telling us: “We can confirm that the Commission has sent out questionnaires, as part of a preliminary investigation into the market for radio frequency front end.”
We’ve reached out to Qualcomm for comment.
The chipmaker disclosed the activity in its 10Q investor filing. Qualcomm wrote that the regulator requested information in early December, “notifying us that it is investigating whether we engaged in anti-competitive behavior in the European Union (EU)/European Economic Area (EEA) by leveraging our market position in 5G baseband processors in the RFFE space.”
Qualcomm says it’s in the process of responding to the request for information.
It’s not yet clear whether the investigation will move to a formal footing in future. “Our preliminary investigation is ongoing. We cannot comment on or predict its timing or outcome,” the EC spokeswoman told us.
“It is difficult to predict the outcome of this matter or what remedies, if any, may be imposed by the EC,” Qualcomm also wrote in the investor filing, adding: “We believe that our business practices do not violate the EU competition rules.”
If a violation is found it also warns investors that the EC has the power to impose a fine of up to 10 percent of its annual revenues, and it could also issue injunctive relief that prohibits or restricts certain business practices.
The preliminary probe of Qualcomm’s 5G modem business is by no means the first antitrust action the chip giant has faced in Europe.
Last summer, Europe’s competition commission fined Qualcomm close to $270M following a long-running antitrust investigation into whether it used predatory pricing when selling UMTS baseband chips, with the regulator concluding Qualcomm had used predatory pricing to force a competitor out of the market.
Two years ago the Commission also fined the chipmaker a full $1.23 billion in another antitrust case related to its dominance in LTE chipsets for smartphones, specifically related to its relationship with Apple and its iPhone.
In both cases Qualcomm is appealing the decisions.
It is also battling a major competition case on its home turf. In 2017, the U.S. Federal Trade Commission (FTC) filed charges against Qualcomm, accusing it of using anticompetitive tactics in an attempt to maintain a monopoly in its chip business.
Last year, a U.S. court sided with the FTC, agreeing the chip giant had violated antitrust law and it warned that such behavior would likely continue given Qualcomm’s key role in making modems for next-gen 5G cellular tech. But, again, Qualcomm has appealed, with a decision on the appeal possible this year.
In August, the chipmaker won a partial stay against an earlier court decision that had required it to grant patent licenses to rivals and end its practice of requiring its chip customers sign a patent license before purchasing chips.
“We will continue to vigorously defend ourself in the foregoing matters. However, litigation and investigations are inherently uncertain, and we face difficulties in evaluating or estimating likely outcomes or ranges of possible loss in antitrust and trade regulation investigations in particular,” Qualcomm adds.
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Europe’s competition commissioner Margrethe Vestager, set for a dual role in the next Commission, faced three hours of questions from members of four committees in the European Parliament this afternoon, as MEPs got their chance to interrogate her priorities for a broader legislative role that will shape pan-EU digital strategy for the next five years.
As we reported last month, Vestager is headed for an expanded role in the incoming European Commission with president-elect Ursula von der Leyen picking her as an executive VP overseeing a new portfolio called “Europe fit for the digital age.”
She is also set to retain her current job as competition commissioner. And a question she faced more than once during today’s hearing in front of MEPs, who have a confirming vote on her appointment, was whether the combined portfolio wasn’t at risk of a conflict of interest?
Or whether she “recognized the tension between objective competition enforcement and industrial policy interests in your portfolio,” as one MEP put it, before asking whether she would “build Chinese walls” within it to avoid crossing the streams of enforcement and policymaking.
Vestager responded by saying it was the first question she’d asked herself on being offered the role — before laying out flat reasoning that “the independence in law enforcement is non-negotiable.”
“It has always been true that the commissioner for competition has been part of the College. And every decision we take also in competition is a collegial decision,” she said. “What justifies that is of course that every decision is subject to not one but 2x legal scrutiny if need be. And the latest confirmation of this set up was two judgments in 2011 — where it was looked into whether this set up… is in accordance with our human rights and that has been found to be so. So the set up, as such, is as it should be.”
The commissioner and commissioner-designate responded capably to a wide range of questions reflecting the broad span of her new responsibilities — fielding questions on areas including digital taxation; platform power and regulation; a green new deal; AI and data ethics; digital skills and research; and small business regulation and funding, as well as queries around specific pieces of legislation (such as ePrivacy and Copyright Reform).
Climate change and digital transformation were singled out in her opening remarks as two of Europe’s biggest challenges — ones she said will require both joint working and a focus on fairness.
“Europe is filled with highly skilled people, we have excellent infrastructure, fair and effective laws. Our Single Market gives European businesses the room to grow and innovate, and be the best in the world at what they do,” she said at the top of her pitch to MEPs. “So my pledge is not to make Europe more like China, or America. My pledge is to help make Europe more like herself. To build on our own strengths and values, so our society is both strong and fair. For all Europeans.”
In her opening remarks Vestager said that if confirmed she will work to build trust in digital services — suggesting regulation on how companies collect, use and share data might be necessary to ensure people’s data is used for public good, rather than to concentrate market power.
It’s a suggestion that won’t have gone unnoticed in Silicon Valley.
“I will work on a Digital Services Act that includes upgrading our liability and safety rules for digital platforms, services and products,” she pledged. “We may also need to regulate the way that companies collect and use and share data — so it benefits the whole of our society.”
“As global competition gets tougher we’ll need to work harder to preserve a level playing field,” she also warned.
But asked directly during the hearing whether Europe’s response to platform power might include breaking up overbearing tech giants, Vestager signaled caution — saying such an intrusive intervention should only be used as a last resort, and that she has an obligation to try less drastic measures first. (It’s a position she’s set out before in public.)
“You’re right to say fines are not doing the trick and fines are not enough,” she said in response to one questioner on the topic. Another MEP complained fines on tech giants are essentially just seen as an “operating expense.”
Vestager went on to cite the Google AdSense antitrust case as an example of enforcement that hasn’t succeeded because it has failed to restore competition. “Some of the things that we will of course look into is do we need even stronger remedies for competition to pick up in these markets,” she said. “They stopped their behavior. That’s now two years ago. The market hasn’t picked up. So what do we do in those kind of cases? We have to consider remedies that are much more far reaching.
“Also before we reach for the very, very far reaching remedy to break up a company — we have that tool in our toolbox but obviously it is very far reaching… My obligation is to ensure that we do the least intrusive thing in order to make competition come back. And in that respect, obviously, I am willing to explore what do we need more, in competition cases, for competition to come back.”
Competition law enforcers in Europe will have to consider how to make sure rules enforce fair competition in what Vestager described as a “new phenomenon” of “competition for a market, not just in a market” — meaning that whoever wins the competition becomes “the de facto rule setter in this market.”
Regulating platforms on transparency and fairness is something on which European legislators have already agreed — earlier this year. Though that platform to business regulation has yet to come into force. “But it will also be a question for us as competition law enforcers,” Vestager told MEPs.
Making use of existing antitrust laws but doing so with greater speed and agility, rather than a drastic change of competition approach, appeared to be her main message — with the commissioner noting she’d recently dusted off interim measures in an ongoing case against chipmaker Broadcom; the first time such an application has been made for 20 years.
“It’s a good reflection of the fact that we find it a very high priority to speed up what we do,” she said, adding: “There’s a limit as to how fast law enforcement can work, because we will never compromise on due process — on the other hand we should be able to work as fast as possible.”
Her responses to MEPs on platform power favored greater regulation of digital markets (potentially including data), markets which have become dominated by data-gobbling platforms — rather than an abrupt smashing of the platforms themselves. So not an Elizabeth Warren “existential” threat to big tech, then, but from a platform point of view Vestager’s preferred approach might just sum to death by a thousand legal cuts.
“One of course could consider what kind of tools do we need?,” she opined, talking about market reorganization as a means of regulating platform power. “[There are] different ways of trying to re-organize a marketplace if the competition authority finds that the way it’s working is not beneficial for fair competition. And those are tools that can be considered in order to sort of re-organize before harm is done. Then you don’t punish because no infringement is found but you can give very direct almost orders… as to how a market should be organized.”
On artificial intelligence — which the current Commission has been working on developing a framework for ethical design and application — Vestager’s opening remarks contained a pledge to publish proposals for this framework — to “make sure artificial intelligence is used ethically, to support human decisions and not undermine them” — and to do so within her first 100 days in office.
That led one MEP to question whether it wasn’t too ambitious and hasty to rush to control a still emerging technology. “It is very ambitious,” she responded. “And one of the things that I think about a lot is of course if we want to build trust then you have to listen.
“You cannot just say I have a brilliant idea, I make it happen all over. You have to listen to people to figure out what would be the right approach here. Also because there is a balance. Because if you’re developing something new then — exactly as you say — you should be very careful not to over-regulate.
“For me, to fulfill these ambitions, obviously we need the feedback from the many, many businesses who have taken upon them to use the assessment list and the principles [recommended by the Commission’s HLEG on AI] of how to create AI you can trust. But I also think, to some degree, we have to listen fast. Because we have to talk with a lot of different people in order to get it right. But it is a reflection of the fact that we are in hurry. We really need to get our AI strategy off the ground and these proposals will be part of that.”
Europe could differentiate itself — and be “a world leader” — by developing “AI with a purpose,” Vestager suggested, pointing to potential applications for the tech such as in healthcare, transportation and combating climate change, which she said would also work to further European values.
“I don’t think that we can be world leaders without ethical guidelines,” she said of AI. “I think we will lose it if we just say no let’s do as they do in the rest of the world — let’s pool all the data from everyone, no matter where it comes from, and let’s just invest all our money. I think we will lose out because the AI you create because you want to serve humans. That’s a different sort of AI. This is AI with a purpose.”
On digital taxation — where Vestager will play a strategic role, working with other commissioners — she said her intention is to work toward trying to achieve global agreement on reforming rules to take account of how data and profits flow across borders. But if that’s not possible she said Europe is prepared to act alone — and quickly — by the end of 2020.
“Surprising things can happen,” she said, discussing the challenge of achieving even an EU-wide consensus on tax reform, and noting how many pieces of tax legislation have already been passed in the European Council by unanimity. “So it’s not undoable. The problem is we have a couple of very important pieces of legislation that have not been passed.
“I’m still kind of hopeful in the working way that we can get a global agreement on digital taxation. If that is not the case, obviously we will table and push for a European solution. And I admire the Member States who’ve said we want a European or global solution, but if that isn’t to be we’re willing to do that by ourselves in order to be able to answer to all the businesses who pay their taxes.”
Vestager also signaled support for exploring the possibility of amending Article 116 of the Treaty on the Functioning of the EU, which relates to competition-based distortion of the internal market, in order to enable tax reform to be passed by a qualified majority, instead of unanimously — as a potential strategy for getting past the EU’s own current blocks to tax reform.
“I think definitely we should start exploring what would that entail,” she said in response to a follow-up question. “I don’t think it’s a given that it would be successful, but it’s important that we take the different tools that the treaty gives us and use these tools if need be.”
During the hearing she also advocated for a more strategic use of public procurement by the EU and Member States — to push for more funding to go into digital research and business innovation that benefits common interests and priorities.
“It means working together with Member States on important projects of common European interest. We will bring together entire value chains, from universities, suppliers, manufacturers all the way to those who recycle the raw material that is used in manufacturing,” she said.
“Public procurement in Europe is… a lot of money,” she added. “And if we also use that to ask for solutions well then we can have also maybe smaller businesses to say I can actually do that. So we can make an artificial intelligence strategy that will push in all different sectors of society.”
She also argued that Europe’s industrial strategy needs to reach beyond its own Single Market — signaling a tougher approach to market access to those outside the bloc.
And implying she might favor less of a free-for-all when it comes to access to publicly funded data — if the value it contains risks further entrenching already data-rich, market-dominating giants at the expense of smaller local players.
“As we get more and more interconnected, we are more dependent and affected by decisions made by others. Europe is the biggest trading partner of some 80 countries, including China and the U.S. So we are in a strong position to work for a level global playing field. This includes pursuing our proposal to reform the World Trade Organization. It includes giving ourselves the right tools to make sure that foreign state ownership and subsidies do not undermine fair competition in Europe,” she said.
“We have to figure out what constitutes market power,” she went on, discussing how capacity to collect data can influence market position, regardless of whether it’s directly linked to revenue. “We will expand our insights as to how this works. We have learned a lot from some of the merger cases that we have been doing to see how data can work as an asset for innovation but also as a barrier to entry. Because if you don’t have the right data it’s very difficult to produce the services that people are actually asking for. And that becomes increasingly critical when it comes to AI. Because once you have it then you can do even more.
“I think we have to discuss what we do with all the amazing publicly funded data that we make available. It’s not to be overly biblical but we shouldn’t end up in a situation where ‘those who have shall more be given.’ If you have a lot already then you also have the capabilities and the technical insight to make very good use of it. And we do have amazing data in Europe. Just think about what can be assessed in our supercomputers… they are world-class… And second when it comes to both [EU sat-nav] Galileo and [earth observation program] Copernicus. Also here data is available. Which is an excellent thing for the farmer doing precision farming and saving in pesticides and seeds and all of that. But are really happy that we also make it available for those who could actually pay for it themselves?
“I think that is a discussion that we will have to have — to make sure that not just the big ones keep taking for themselves but the smaller ones having a fair chance.”
During the hearing Vestager was also asked whether she supported the controversial EU copyright reform.
She said she supports the “compromise” achieved — arguing that the legislation is important to ensure artists are rewarded for the work they do — but stressed that it will be important for the incoming Commission to ensure Member States’ implementations are “coherent” and that fragmentation is avoided.
She also warned against the risk of the same “divisive” debates being reopened afresh, via other pieces of legislation.
“I think now that the copyright issue has been settled it shouldn’t be reopened in the area of the Digital Services Act,” she said. “I think it’s important to be very careful not to do that because then we would lose speed again when it comes to actually making sure there is remuneration for those who hold copyright.”
Asked in a follow-up question how, as the directive gets implemented by EU Member States, she will ensure freedom of speech is protected from upload filter technologies — which is what critics of the copyright reform argue the law effectively demands that platforms deploy — Vestager hedged, saying: “[It] will take a lot of discussions and back and forth between Member States and Commission, probably. Also this parliament will follow this very closely. To make sure that we get an implementation in Member States that are similar.”
“One has to be very careful,” she added. “Some of the discussions that we had during the adoption of the copyright directive will come back. Because these are crucial debates. Because it’s a debate between the freedom of speech and actually protecting people who have rights. Which is completely justified… Just as we have fundamental values we also have fundamental discussions because it’s always a balancing act how to get this right.”
The commissioner also voiced support for passing the ePrivacy Regulation. “It will be high priority to make sure that we’re able to pass that,” she told MEPs, dubbing the reform an important building block.
“One of the things I hope is that we don’t just always decentralize to the individual citizens,” she added. “Now you have rights, now you just go and force them. Because I know I have rights but one of my frustrations is how to enforce them? Because I am to read page after page after page and if I’m not tired and just forget about it then I sign up anyway. And that doesn’t really make sense. We still have to do more for people to feel empowered to protect themselves.”
She was also asked for her views on adtech-driven microtargeting — as a conduit for disinformation campaigns and political interference — and more broadly as so-called “surveillance capitalism.” “Are you willing to tackle adtech-driven business models as a whole?,” she was asked by one MEP. “Are you willing to take certain data exploitation practices like microtargeting completely off the table?”
Hesitating slightly before answering, Vestager said: “One of the things I have learned from surveillance capitalism and these ideas is it’s not you searching Google it is Google searching you. And that gives a very good idea about not only what you want to buy but also what you think. So we have indeed a lot to do. I am in complete agreement with what has been done so far — because we needed to do something fast. So the Code of Practice [on disinformation] is a very good start to make sure that we get things right… So I think we have a lot to build on.
“I don’t know yet what should be the details of the Digital Services Act. And I think it’s very important that we make the most of what we have since we’re in a hurry. Also to take stock of what I would call digital citizens’ rights — the GDPR [General Data Protection Regulation] — that we can have national authorities enforce that in full, and hopefully also to have a market response so that we have privacy by design and being able to choose that. Because I think it’s very important that we also get a market response to say, well, you can actually do things in a very different way than just to allow yourself to feel forced to sign up to whatever terms and conditions that are put in front of you.
“I myself find it very thought-provoking if you have the time just once in a while to read the T&Cs now when they are obliged, thanks to this parliament, to write in a way that you can actually understand that makes it even more scary. And very often it just makes me think, thanks but no thanks. And that of course is the other side of that coin. Yes, regulation. But also us as citizens to be much more aware of what kind of life we want to live and what kind of democracy we want to have. Because it cannot just be digital. Then I think we will lose it.”
In her own plea to MEPs, Vestager urged them to pass the budget so that the Commission can get on with all the pressing tasks in front of it. “We have proposed that we increase our investments quite a lot in order to be able to do all this kind of stuff,” she said.
“First things first, I’m sorry to say this, we need the money. We need funding. We need the programs. We need to be able to do something so that people can see that businesses can use funds to invest in innovation, so that researchers can make their networks work all over Europe. That they get the funding actually to get there. And in that respect I hope that you will help push for the multi-annual financial framework to be in place. I don’t think that Europeans have any patience for us when it comes to these different things that we would like to be real. That is now, that is here.”
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Google has lodged its legal appeal against the European Commission’s €4.34 billion (~$5BN) antitrust ruling against its Android mobile OS, according to Reuters — the first step in a process that could keep its lawyers busy for years to come.
“We have now filed our appeal of the EC’s Android decision at the General Court of the EU,” it told the news agency, via email.
We’ve reached out to Google for comment on the appeals process.
Rulings made by the EU’s General Court in Luxembourg can be appealed to the top court, the Court of Justice of the European Union, but only on points of law.
Europe’s competition commissioner, Margrethe Vestager, announced the record-breaking antitrust penalty for Android in July, following more than two years of investigation of the company’s practices around its smartphone operating system.
Vestager said Google had abused the regional dominance of its smartphone platform by requiring that manufacturers pre-install other Google apps as a condition for being able to license the Play Store.
She also found the company had made payments to some manufacturers and mobile network operators in exchange for them exclusively pre-installing Google Search on their devices, and used Google Play licensing to prevent manufacturers from selling devices based on Android forks — which would not have to include Google services and, in Vestager’s view, “could have provided a platform for rival search engines as well as other app developers to thrive”.
Google rejected the Commission’s findings and said it would appeal.
In a blog post at the time, Google CEO Sundar Pichai argued the contrary — claiming the Android ecosystem has “created more choice, not less” for consumers, and saying the Commission ruling “ignores the new breadth of choice and clear evidence about how people use their phones today”.
According to Reuters the company reiterated its earlier arguments in reference to the appeal.
A spokesperson for the EC told us simply: “The Commission will defend its decision in Court.”
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