Apple’s UK antitrust appeal to be heard in March, expected to take one day

Apple’s UK antitrust appeal has been scheduled for March and is expected to take just one day. As we noted last month, the case will hinge on the legal meaning of the word “shall” …

Apple’s UK antitrust appeal

Foss Patents reports that the hearing will take place in London on March 10.

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.

A summary of the case can be found below.

Apple antitrust appeal

The case concerns two Apple App Store policies that have been declared anticompetitive.

First, Apple bans cloud gaming services in the App Store. This means that a developer cannot offer an app that provides access to multiple games played via cloud servers. It’s suggested that the company’s aim here is to protect its own share of per-game revenue, and to block competition to its own Apple Arcade subscription gaming service.

Second, while Apple allows any developer to create its own web browser, and offer it through the App Store, the Cupertino company only approves browsers that use its own WebKit rendering engine. This makes it impossible for a developer to, for example, make a browser app that is faster than Safari – and Apple also blocks access to some Safari features, like Apple Pay integration.

The UK’s competition watchdog, the Competition and Markets Authority (CMA), found back in June of last year that both policies were indeed anticompetitive. However, a legal technicality meant that antitrust action couldn’t be taken against Apple, even though it was found to be “exercising a stranglehold over these markets.”

That’s because the examination undertaken by the CMA was classed as a market “study” rather than an “investigation.” Only an investigation gives the legal power to impose sanctions.

To get around this problem, the CMA opened a new case into the same two issues, this time as an investigation.

The meaning of “shall”

However, Apple is now arguing that the CMA has missed a deadline to do so.

Apple says the law states that the CMA should have declared its decision to open an investigation on the same date it published the results of the initial study.

The CMA says the law gives it the option to do so, but not the legal requirement.

The law itself says that the CMA “shall” do so. Apple says this word means “must” while the CMA says that it simply permits the body to do so.

There are precedents on both sides, though Apple appears to have the stronger case here.

Photo: Diliff/CC 3.0 Unported (image cropped)