In a move intended to put an end to the Commission’s recent investigation into mobile payment restrictions on iOS, Apple offered third-party developers access to the tap-and-go system (i.e., Near-Field Communication or “NFC”) on its devices.[1]

Responding To The EU Mobile Wallet Probe

Apple’s initiative aims at answering the Commission’s charges published in May 2022[2] that Apple has prevented third-party developers from using the embedded NFC system on iOS devices, hindering the development of alternative applications to Apple Pay.[3]  NFC is a standard technology that facilitates contactless payments in stores by permitting the phone to directly communicate with payment terminals,[4] and is, therefore, an essential input for mobile wallet applications.  As a result of these restrictions, Apple secured Apple Pay’s central position as the sole payment solution within Apple’s ecosystem.  The Commission is currently seeking market feedback from Apple’s competitors and customers, prior to determining whether to accept Apple’s commitments offer.[5]

Apple Under EU Scrutiny

Over the last couple of years, the Commission has scrutinized Apple for a series of potential antitrust infringements.  For example, following a complaint lodged by Spotify, the Commission set out antitrust charges against Apple in April 2021[6] and February 2023.[7]  According to the Commission, Apple forced music-streaming service providers to use its own in-app purchase payment technology when users subscribed to their service through the App Store (resulting in Apple getting a 30% fee for a given transaction).[8]  Apple also prohibited advertising that would promote consumers to use alternative subscription options offered outside the App Store (the “Anti-steering rules”).  By doing so, Apple prevented “those developers from informing consumers about where and how to subscribe to streaming services at lower prices.”[9]  Apple has since amended its rules: agreeing, for instance, to allow applications to advertise lower prices for subscriptions available outside of the App Store.  Despite these modifications, the Commission is expected to adopt a decision against Apple in early 2024.[10] 

Three other Commission investigations were launched against Apple regarding the App Store[11] and Apple Pay,[12] and remain pending.

[1]             See Reuters, “Exclusive: Apple offers to let rivals access tap-and-go tech in EU antitrust case,” December 12, 2023, available here.

[2]             See Commission Press Release IP/22/2764, “Commission sends Statement of Objections to Apple on App Store rules for music streaming providers,” May 2, 2022.

[3]             Ibid.

[4]             Ibid.

[5]             See Reuters article, supra fn 1.

[6]             See Commission Press Release IP/21/2061, “Commission sends Statement of Objections to Apple on App Store rules for music streaming providers,” April 30, 2021.

[7]             According to the Commission’s press release, this State of Objections was the final, refined, version sent to Apple regarding to App Store rules, wherein the Commission dropped some of the concerns set out in the initial April 2021 Statement of Objections.  See Commission Press Release IP/23/1217, “Commission sends Statement of Objections to Apple clarifying concerns over App Store rules for music streaming providers,” February 28, 2023.

[8]             See Bloomberg, “Apple Set to Be Hit by EU Antitrust Order in Spotify Clash,” December 13, 2023, available here.

[9]             See Commission Press Release IP/23/1217, supra fn 7.

[10]            See Bloomberg article, supra fn 10.

[11]            The Commission is also currently investigating whether the App Store’s anti steering rules and mandatory use of the in-app purchase mechanism had anticompetitive consequences beyond Spotify and the other providers of music-streaming services.  Two other matters are currently ongoing: (i) one in the e-books/audiobooks industry (see AT.40652); (ii) one regarding any other services affected by the App Store rules besides music-streaming services and e-books/audiobooks (see AT.40716). 

[12]            The original inquiry from which the aforementioned EU Mobile Wallet Probe stems remains outstanding.  As mentioned in the May 2, 2022, Commission Press Release IP/22/2764 (supra fn 2): “Today’s Statement of Objections takes issue only with the access to NFC input by third-party developers of mobile wallets for payments in stores. It does not take issue with the online restrictions nor the alleged refusals of access to Apple Pay for specific products of rivals that the Commission announced that it had concerns when it opened the in-depth investigation into Apple’s practices regarding Apple Pay on 16 June 2020.”  In other words, the Commission seems to reserve the right to release new charges related to Apple Pay. For more information regarding the initial inquiry: see Commission Press Release IP/20/1075, “Commission opens investigation into Apple practices regarding Apple Pay,” June 16, 2020.