Here's a couple of App Store antitrust updates related to investigations pending in Brazil and the United Kingdom (click here to go straight to the UK part).
In mid-January, Brazil's competition authority--Conselho Administrativo de Defesa Econômica (CADE), which translates as Administrative Council for Economic Defense--opened a full-blown investigation into Apple's App Store terms and practices further to complaints by Latin America's largest e-commerce company, Mercado Libre (in Brazil: Mercado Livre), and another regional player, Clique. A complaint by Mercado Libre is also pending in Mexico.
A week ago, Apple filed an answer to CADE's question concerning investigations in other jurisdictions that was, quite naturally, designed to understate the extent to which the App Store is the subject of antitrust inquiries around the globe.
Yesterday, Apple responded to another CADE request and provided a copy of its App Store Review Guidelines as well as a Portuguese translation of that document.
The two Apple entities who made the filing are both U.S. corporations: Apple Inc. (the parent company in Cupertino) and Apple Services LatAm LLC, a Delaware corporation. Apple insisted early on that Apple Computer Brasil be dismissed as a respondent because it sells only hardware and is not involved with the operation of the App Store according to Apple. I'm not sure that Apple's Brazilian subsidiary has no hand in this (the abuse in question occurs in the aftermarket, but hardware is a foremarket). Be that as it may, the App Store Review Guidelines were provided to CADE by those two U.S. entities.
The letter to which Apple's Brazilian counsel from the firm of Barbosa Müssnich Aragão attached the two versions of the App Store Review Guidelines comes with a ceterum censeo. Here's my translation of that second paragraph:
"Furthermore, Apple reiterates its legal and factual arguments raised on January 6, 2023, and its request for the immediate shelving of the present administrative inquiry, reserving the right to present other objections and evidence to underpin its arguments and to exercise its rights of defense."
Those legal and factual arguments were, however, considered by CADE. I discussed some of them in my commentary on the notice of the formal investigation: the usual arguments about privacy and so forth.
In light of Apple's latest filing, and just for the sake of reasonably comprehensive coverage, I should add that Apple also raised procedural objections, such as claiming that key passages of Mercado Libre's filings with CADE had not been disclosed to Apple. As a result of the launch of a formal investigation, Apple's lawyers now appear to have access to the case file, so there may be no more lack of visibility of what they need to know to properly represent their client.
For now I believe Apple's lawyers are just preserving their rights, especially with a view to an appeal of a final CADE decision, and doubt that there has been--much less continues to be--any violation of Apple's rights as a respondent to a CADE investigation.
UK Competition Appeal Tribunal schedules full-day Apple v. CMA hearing for March 10, 2023
This is a follow-up to my January 22, 2023 post, Apple apparently argues 'shall' means 'must' in appeal of UK antitrust authority CMA's decision to investigate mobile browsers and cloud gaming based on allegedly elapsed deadlines. The CMA's long-form name is Competition & Markets Authority. It's an increasingly important competition agency that some analysts believe will effectively decide whether Microsoft gets to consummate its purchase of Activision Blizzard. The CMA's provisional findings in that merger case are widely expected to be rendered this week. First there were reports that Microsoft expected the CMA to take a negative view of the transaction, but yesterday I saw a tweet that contradicted that view. Let's see. As an app developer who complained about Apple and Google, I just hope the CMA will recognize the ways in which Microsoft's acquisition of key mobile games such as Candy Crush can enable it to compete with the duopolists (in jurisdictions where the App Store is demonopolized, but the EU has enacted such rules and the UK legislature is working on them). After that little disgression into the CMA's presently biggest case, back to the Apple-CMA appeal before the CAT:
Unless I missed something because it was hidden somewhere behind a paywall, only this blog and the reporters who referenced it (thanks to Apple Insider and 9to5Mac!) informed their readers of what Apple's appeal turns on (the mandatoriness of the word "shall").
When I reported on this before, a case management conference was scheduled for January 24. That one was subsequently vacated. Instead, the latest from the CAT is that "[t]he hearing of the application has been listed on 10 March 2023 (with a time estimate of one day)." They will start at 10:30 AM UK time (click on the image to enlarge):
I hope the CMA will prevail over Apple on this one because its market investigation into mobile browser and cloud gaming would have major potential, but Apple has raised a reasonable question of legal interpretation in that appeal.
Two days before that appellate hearing, Geradin Partners will host a London conference to discuss the competition aspects of cloud gaming, with a CMA official (Alison Gold) being one of the panelists.
