Role of the DMA for app developers

In September 2023, the European Commission (“Commission”) designated Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft as gatekeepers under the DMA. This is based on the total of 22 core platform services (“CPS”) operated by these six companies. The CPS provided in the DMA are all characterised by the fact that they act as an interface between a large number of end users on the one hand and commercial users on the other. CPS also include operating systems and app stores, such as those operated by Apple and Google. App developers are dependent on these stores to the extent that they can largely only reach their customers via app stores or operating systems. Accordingly, app developers are dependent on the gatekeepers granting them transparent and non-discriminatory access to customers.

As of 7 March 2024 – known as DMA ‘Compliance Day’ – gatekeepers had to have implemented the DMA obligations and prepared (and regularly updated) reports outlining how they comply with their DMA obligations. The Commission published the reports on its website in a non-confidential version.

Following these reports, the Commission initiated official proceedings for failure to implement the DMA obligations as early as on 25 March 2024, i.e. not even 20 days after DMA Compliance Day. In particular, Apple and Google are accused of failing to comply with the requirements of the DMA in the design of their app stores (see Commission press release). Non-compliance proceedings may lead to substantial fines for the gatekeepers. In addition, the gatekeepers may be confronted with legal proceedings initiated by users and app developers before national courts based on non-compliance with the DMA obligations (private actions for abatement, injunctions and damages; more background information on this can be found in our article on Noerr News).

Which obligations are particularly relevant to app developers?

The DMA contains more than twenty obligations in Articles 5-7, many of which also have at least an indirect impact on app developers. Below, we highlight the three most important obligations that are likely to lead to particularly far-reaching changes to app developers’ rights and options.

Authorisation of steering measures – Article 5(4) DMA

Gatekeepers are obliged to allow measures by app developers with which they advertise to end users, particularly as part of their intermediary services and operating systems. It is important to note that the advertising can also relate to products and terms not even offered by the app developer via the gatekeeper’s CPS. This is intended especially to prevent commercial users from being obliged to offer products exclusively via the gatekeeper’s CPS.

The DMA therefore aims at reducing dependencies of commercial users by enabling them to steer their end users away from the gatekeepers’ CPS (known as “steering measures”).

It is worth mentioning that the Commission recently (i.e. before DMA Compliance Day) fined Apple over €1.8 billion for similar behaviour on the basis of antitrust provisions, and not under the DMA (Commission press release). In the case at issue, Apple had prohibited developers of music streaming services from referring to and advertising cheaper offers outside the Apple ecosystem.

Significance for app developers: App developers have the right to communicate their offers and alternative (especially cheaper) distribution channels to end users via each gatekeeper’s core platform services.

Obligation to allow the installation and use of third-party software – Article 6(4) DMA

Article 6(4) DMA requires gatekeepers offering an operating system as a CPS to allow the effective use of apps and app stores from other providers. Compliance with this obligation requires transparent and non-discriminatory access to the technical programming interface of the operating system for app developers so that the apps can be installed on the relevant operating system. Gatekeepers must also allow side-loading which means the option of obtaining and installing an app via channels other than the official app stores of the operating system.

The purpose of this obligation is to open up closed business models in which using the operating system previously required using the company’s own app store. The obligation is intended to encourage competition between app stores on all operating systems and enable cost-effective and simple distribution for app developers.

Significance for app developers: App developers have a right with respect to operating systems (that are designated as CPS) to distribute their apps via other/their own app stores or other distribution channels without being restricted to using a particular operating system.

Interoperability obligations for operating systems – Article 6(7) DMA

Article 6(7) DMA states that gatekeepers must permit the exchange of different information with other software and hardware free of charge (known as interoperability) in relation to operating systems and virtual assistants designated as CPS. By way of an example, gatekeepers must ensure from a technical perspective that app developers have access to all features of an operating system. Such requirement shall ensure that app developers can offer apps other than those of the operating system operator but with comparable features.

The aim of interoperability is thus to facilitate competition at app level. Without interoperability, a gatekeeper could otherwise exploit a possible dual role as the operator of a CPS and the sole provider of compatible products.

Significance for app developers: App developers are entitled to obtain free and effective access from gatekeepers who operate an operating system or a virtual assistant as a CPS to those CPS by means of interoperability for complementary software and hardware.

How can app developers enforce their rights?

The Commission enforces the DMA, and app developers could approach the authority in Brussels in order to prompt action against the gatekeepers. In addition to such public enforcement.

affected parties can therefore bring civil actions for injunctions (including interim relief) and, if necessary, claims for damages before the national courts in the EU (private enforcement – see our Noerr News article for more information). Once the Commission (and, if applicable, the courts) have found a breach of the DMA, follow-on actions for damages against gatekeepers will also be possible. With the 11th Amendment to the German Act against Restraints of Competition, the German legislators have extended the binding effect of Commission decisions familiar from antitrust law to Commission decisions on the DMA.

What comes next?

The Commission must complete its investigations into Alphabet’s, Apple’s and Meta’s practices within twelve months. Of particular relevance to app developers is the question as to whether and to what extent Alphabet and Apple are in breach of the DMA due to the way they organise the terms and conditions of their app stores. App developers and other affected parties may in principle also take action against the gatekeepers in national courts even before the Commission’s proceedings are concluded.

Note: The book New Digital Markets Act (DMA), recently issued by Jens Peter Schmidt and Fabian Hübener, is our assessment of the background to, implementation of and compliance with the DMA. Please contact us if you would like further advice and tailored solutions regarding the DMA and related competition law issues.