It’s (not) a Match! Apple’s In-App Purchase Functionality Scrutinised by the Netherlands Authority for Consumers and Markets

Abstract

On 24 August 2021, the Dutch competition authority found that Apple had incurred in an abuse of a dominant position pursuant both to its national competition rules and article 102 TFEU, by imposing unreasonable conditions on dating app-providers through its payment policies.

As opposed to the traditional approach of competition authorities, the Netherlands Authority for Consumers and Markets (ACM) decided to prohibit the conduct and prompt Apple towards compliance through the imposition of weekly periodic penalty payments. To this day, Apple has only proposed a costly solution where third-party app providers will have to carry the burden with them, if they want to make alternative payments within the iOS ecosystem possible. On top of that, the remedy still charges third-party apps a 27 per cent fee instead of the 30 per cent fee charged to account for the ecosystem’s financing . The Dutch competition authority ruled out that the anticompetitive concerns were addressed by the procedures proposed by Apple and has imposed 5 million euros’ weekly periodic penalty payments.

By contrast to Apple’s position, the Coalition for App Fairness -integrated by the power trio Spotify, Epic Games and Match amongst others- is attempting to combat Apple’s superdominance on many fronts, ranging from judicial proceedings in the US to competition procedures at the EU level . The dimension and scope of their complaints indicate they are looking for the magic bullet that will bring Apple’s abusive role as a gatekeeper to an end.

Against this background, we will analyse the real impact of the decision with consideration to its theory of harm, given it only touches upon the payment systems within the Dutch market of dating apps . Correspondingly, we will consider Apple’s and the Coalition’s incentives to comply in the light of the solutions that are being put forward worldwide by both regulatory and competition agencies . Finally, we will address whether the Dutch competition authority’s decision paves out the way for realising antitrust deterrence in the digital arena.

Keywords: Digital markets, Apple, IAP, Abuse of a dominant position, Exploitative abuse

JEL Classification: K21, K23, K42