Federal Court of Justice: Federal Cartel Office may monitor Apple more strictly
The Federal Court of Justice says Apple has “paramount cross-market significance for competition”. The Federal Cartel Office may thus now take a closer look.
An Apple logo under apples (symbolic image).
(Image: Generiert mit Midjourney durch Mac & i)
It was already foreseeable: The Federal Court of Justice (BGH) in Karlsruhe has ruled in favor of the competition authorities in a dispute between the Federal Cartel Office and Apple. The iPhone manufacturer is a company that is of paramount importance for competition across markets, the judges explained in their decision published on Tuesday with the case number KVB 61/23. This means that the Federal Cartel Office may at least theoretically prohibit – – business methods used by Apple that, in the opinion of the monopoly watchdogs, have a negative impact on competition.
It is still unclear what Apple is actually threatened with
The German Federal Cartel Office had already classified Apple as a company with overriding market power in 2023. The company lodged an appeal against this. However, at the end of January, it became clear at the hearing that the BGH would follow the antitrust watchdogs in their arguments. The Cartel Senate has now ruled that the appeal in the first (and final) instance must be dismissed.
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In its actions, the Federal Cartel Office is using a legal basis from 2021 that facilitates action against technology groups and was created in the reform of the Act against Restraints of Competition. However, to be able to punish infringements, a company must first be deemed to be of paramount importance across the market. The actual prohibitions and penalties then follow in a second step.
Federal Cartel Office against app tracking transparency
Apple's behavior, which the German antitrust watchdogs view critically, includes a privacy function in iOS. Since 2021, developers have had to ask users if they want to track them across apps. The so-called App Tracking Transparency (ATT) does not apply to Apple itself, at least according to the German Federal Cartel Office.
The iPhone company naturally takes a different view. Apple believes that it places even higher demands on itself than on third-party developers “by giving users the opportunity to decide whether they want personalized advertising at all”, as it said in a statement in February. Apple is fighting against and with regulation on several levels: in addition to antitrust authorities in individual countries, there are also major EU proceedings underway due to possible violations of the Europe-wide Digital Markets Act.
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