Epic vs. Apple – A right Battle Royale pt. VI

Epic adds the EU as the next theatre of war.

• Epic has filed an antitrust complaint against Apple with the EU in what is a natural extension of this dispute as the EU has a long history of being more accommodating to plaintiffs in antitrust matters than other jurisdictions.
• Epic’s case is a fairly simple one and is in line with what it has been complaining about for some time.
• This complaint is that Apple is restricting competition for payment mechanisms and app distribution on iOS which Epic views as a breach of EU law similar to Google on Android and on search and Microsoft with its bundling of Internet Explorer.
• Epic is not asking the EU for a monetary settlement but to have it force Apple to open up iOS to competition in these two areas.
• The EU is already investigating Apple in a couple of other areas and given the growing sentiment that “Big Tech” has too much power, this complaint is well-timed to have the maximum chance of success.
• When it comes to market abuse claims like this with the EU, there are two hurdles that one has to get over to achieve a positive result.
• The first is that one has to demonstrate market dominance and the other is to show that the holder of that dominance has abused it to stifle competition and harm consumers.
• I suspect that the hardest part of this case for Epic is going to be proving dominance.
• This is because while Apple has complete control of its ecosystem, that ecosystem commands less than 20% of the European smartphone market.
• Hence, one could make the case (and I am sure that Apple will) that this case should fail because Apple does not meet the standard of having dominance in smartphones.
• The real question is whether the EU considers the smartphone market as one or whether it considers that iOS is a separate and distinct market in its own right.
• This argument was not applicable to either Microsoft or Google when they ran the gauntlet with the EU and so there is a possibility that Apple escapes on this technicality.
• The one thing that one can be sure of is that this is going to take a long time which is something that Apple can afford more than Epic can.
• The longer Fortnite is absent on iOS, the more relevance the game loses as while older iPhones still have access, any new ones are locked out without a jailbreak.
• Epic and Apple are set to go to trial in the USA in May and so I suspect that this will be the next big event in this already long-running saga.
• I still think that a settlement of some description is likely with Epic getting a special deal like Amazon, but this is not going to happen until some event (perhaps at trial) shifts the balance towards one party.
• There are still plenty of fireworks to come.