Apple has won an appeal over a U.K. antitrust hearing into how the company handles third-party web browsers and cloud gaming on the iPhone and iPad.
The U.K.’s Competition and Market Authority (CMA) first started looking into the antitrust implications of Apple’s stance in 2020. It then ran a consultation that looked into the industry as a whole before finally deciding to begin a probe into Apple’s business practices.
The problem, and the reason that Apple won on appeal, is that the CMA took too long to actually begin that probe.
“Erred in law”
The CMA had contested that Apple’s requirement that all third-party web browsers use its own WebKit browsing engine was problematic, while not allowing cloud gaming services into the App Store and limiting their use via Safari was also under the microscope.
But TechCrunch (opens in new tab) reports that the CMA’s launching of a formal investigation dubbed a Market Investigation Reference (MIR), took too long to happen.
“The MIR decision followed a market study of the mobile duopoly — which the CMA kicked off in June 2021 — and resulted in a preliminary finding of competition concerns, back in December 2021,” the report notes. But at the time it was decided that the CMA wouldn’t take action while it waited for new “pro-competition” powers that were expected to be bestowed upon it by the government.
However, those powers never came and the CMA decided that it had to act with what it already had. The problem was that it took too long to do it.
An in-depth investigation was finally confirmed in November 2022, but that was too late as confirmed by a tribunal following an Apple appeal.
The tribunal “erred in law” and should have started afresh instead of revisiting the existing market study.
However, the CMA could now choose to appeal the tribunal’s ruling, with a spokesperson saying that “given the importance of today’s judgment, we will be considering our options including seeking permission to appeal.”
Seems a direct result of this government’s choice to delay the Digital Market Unit legislation, as CMA only delayed investigation in expectation of new powers. Regulators’ paralysis, of the sort this gov pushes, means even the decisions they want to make are procedurally fragile. https://t.co/1MhDDiiW5bApril 3, 2023
It remains to be seen whether an appeal is made and if it is, whether it could be successful at this point.
Ultimately, all of this has left Apple, its App Store, and users in the same place they were when this all started. Even Apple’s best iPhones have limitations imposed by Apple which prevent Xbox, Nvidia, and others from providing what they might argue is the best gaming experience to Apple’s platforms. And even with third-party web browsers available from Google and others, they all use the same underpinnings as Safari. It looks increasingly unlikely that the CMA’s botched investigation will change that.