Ten Reasons Why Apple’s App Store Terms are Still Not Compliant with the DMA

By: Damien Geradin (Platform Law Blog)

Apple had until March 7, 2024, to implement the necessary changes to ensure that the terms and conditions it imposes on app developers and users within its mobile ecosystem comply with the app store-related provisions of the Digital Markets Act (DMA). These provisions aim to promote competition in app distribution and content acquisition, while also ensuring greater fairness in Apple’s terms for accessing the App Store.

In a surprising move, Apple announced on January 25, 2024, how it planned to implement the DMA’s app store provisions, well ahead of the March deadline. However, app developers quickly realized that Apple’s proposed changes did not meet the DMA’s requirements. In response, Apple made several minor adjustments in rapid succession, eventually introducing more substantial changes on August 8, 2024. This blog post aims to summarize why Apple’s updated terms still fail to fully comply with the DMA, though a more in-depth analysis would be required to unpack these complex issues in detail.

At the outset, Apple’s overall strategy regarding the DMA is difficult to discern. It’s clear that the company was likely taken aback by the failure of its lobbying efforts against the DMA, which now imposes strict obligations requiring Apple to make significant changes to the operation of the App Store and its broader mobile ecosystem. From that point, Apple seems to have opted for a strategy of resisting DMA implementation wherever possible, using every available tactic. Apple and its advisors were fully aware that the terms issued on January 25, 2024, did not comply with the DMA and would likely prompt investigations by the European Commission (EC), which is exactly what happened. Apple has since made it challenging for the EC to conduct these investigations by regularly modifying its terms, effectively forcing the EC to chase a moving target. Apple may be hoping to exhaust both the EC and app developers, pushing them to eventually accept terms that fall short of full compliance but still represent some progress. However, this approach is unacceptable, as the DMA is not a set of optional guidelines—it requires full compliance.

Apple’s August 2024 terms still fall short of the DMA’s requirements. While there is minimal progress on key issues, the new terms continue to violate certain DMA provisions. In other instances, Apple imposes unattractive fees and introduces friction that makes it difficult, if not impossible, for app developers and users to fully benefit from the DMA’s protections, amounting to a form of circumvention.

Let’s now examine why Apple’s latest terms remain non-compliant with the DMA…

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