Stricter competitive supervision: Stricter competitive control for Apple: BGH clears away

In the dispute over Apple’s stricter competition supervision, the Federal Court of Justice (BGH) strengthened its back on the Federal Cartel Office. The court confirmed a classification of the competitive keepers, according to which the US technology company has an “outstanding cross-market importance for the competition”. The way for the cartel office is therefore free to ban Apple certain business practices in the next step, which in his view endanger the competition. (Az. KVB 61/23)

Since a reform of the law against restrictions in competitions in 2021, the antitrust office has been easier to proceed against large digital companies that are significant for competition across borders of various market areas. The law provides for a two -stage procedure. In a first step, the authority states regardless of a concrete violation that a group has an outstanding cross -market importance.

In the second step, the cartel office can then prohibit the affected company certain behaviors. For example, it can forbid the company to prefer its own offers on its website to those of competitors in the presentation, or to make it dependent on the use of a different offer.

First and last instance: Karlsruhe

In 2023, the Federal Cartel Office found that Apple had such an outstanding cross -market importance. The company wanted to defend itself against this statement at the BGH in Karlsruhe. The Cartel Senate rejected the complaint on Tuesday in the first and last instance. (Az. KVB 61/23)

With its operating systems and the app store, Apple is “a considerable extent on multi-sided markets,” emphasized the presiding judge, Wolfgang Kirchhoff at the announcement. Such a multi -sided market lies, for example, if a platform enables interactions between different user groups.

It is irrelevant for the classification of the cartel office whether there is a concrete hazard for the competition, says Kirchhoff. It is important to have an “abstract risk potential”. The Federal Cartel Office rightly decided that Apple has such strategic and competitive potential.

“Solid foundation” for ongoing examination

The Bundeskartellamt welcomed the decision of the Karlsruhe judges. “It is confirmed that Apple is subject to stricter abuse supervision,” said President Andreas Mundt. “Our already ongoing examination of Apple’s tracking control for third-party apps is on a solid foundation, we work with high pressure in this case and other cases against the large internet companies.”

The examination mentioned is about the fact that Apple users have to agree to collect their usage data through tracking when using third-party apps-with the Apple’s own apps. In the preliminary view of the cartel office, this could be a violation of competition. The question is whether Apple is preferred by the regulation or other companies are hindered accordingly. If necessary, the authority could prohibit the group of this procedure.

Apple emphasizes hard competition in Germany

Apple criticized the BGH’s decision. “Apple is exposed to hard competition in Germany,” said the company after the announcement. “We do not agree to today’s decision of the Federal Court of Justice to maintain the classification of the Federal Cartel Office. It neglects the value of a business model that focuses on the privacy and security of users: inside.”

So far, the Bundeskartellamt has classified five digital giants as companies with outstanding cross-market importance: the Google Group Alphabet, the Facebook group Meta, Apple, Amazon and Microsoft. With today’s decision, all decisions are final. Amazon also lodged a complaint against the decision of the competitive keepers – the BGH also opposed the cartel office in April 2024.