Android, iOS and Windows have all been designated as gatekeeper operating systems (OSes) under the Digital Markets Act. Amongst other obligations, this means:
The gatekeeper shall allow and technically enable the installation and effective use of third-party software applications or software application stores using, or interoperating with, its operating system and allow those software applications or software application stores to be accessed by means other than the relevant core platform services of that gatekeeper…
Digital Markets Act Article 6(4).
While I initially read this as requiring both direct app downloads and third-party app stores, I can see it can be read as requiring only one of these — as Apple has chosen to interpret this paragraph. This would be an unfortunate interpretation for the “fairness and contestability” of app markets.
Curiously, the German-language version uses an “and” rather than “or”. The Act’s (German) parliamentary rapporteur has confirmed his view this provision requires BOTH third-party app downloads and app stores:
It is clear ✔️ Not only that it‘s a „und“ but it‘s also economically clear that using and AppStore includes the use of the Apps. @EU_Competition@vetager@Apple
— Andreas Schwab @ASchwab.bsky.social (@Andreas_Schwab) February 14, 2024
Let’s see if the “close scrutiny” of Apple’s DMA compliance promised by Competition Commissioner Margrethe Vestager addresses this point 🧐 Could the English-language Act be clarified with a corrigendum (probably too controversial)? If not, I guess the obligation could be “updated” with a delegated act by the Commission following a market investigation (Art. 12). Purposive interpretation by the Court of Justice might (ultimately) also do the job 👩⚖️
