Very little if anything has been said in this conversation about the EU dimension of the US case, but I think it may be worth bringing it in.
By my reading the US case centres on the legality or otherwise of certain of Apple’s contractual terms, namely the the iOS App Store rules which are incorporated into the developer agreement between Epic and Apple. Epic’s argument is essentially that Apple has a monopoly on distribution of iOS Apps, which brings Apple’s behaviours within the scope of the Sherman Act and other antitrust legislation. If it can be established that Apple has a monopoly and that it has abused that monopolistic position, then the questionable terms are illegal. That makes those terms of Epic’s contract with Apple unenforceable, thus Apple cannot terminate Epic’s developer contract or throw Epic’s apps off the App store for breach of contract. Apple may be able to do so for other reasons, but not breach of contract.
Apple, of course, argues that it is not a monopolist and thus Epic’s entire argument falls. Apple makes this argument on technical grounds (of course the manufacturer of an infungible good has a monopoly over that product), on market grounds (the iPhone is just one type of mobile phone, there are many other supplier of moibile phones) and on consumer benefit grounds (we are not monopolising the distribution of iOS apps for our own benefit, but to protect consunmers from bad actors). Any one of these defenses suffices; Apple may well succeed.
The EU position, however, is somewhat different. EU competition law does not rest upon the existence of a monopoly, but rather on dominance within a market. Neither does attempt, as I understand the Sherman Act does, to enumerate specific prohibited actions. Rather EU law sets up a general principle that a dominant player in a market may not act in an anti-competitive manner. Whether a market exists is determined by the economic concept of “substitution” in either or both supply and demand. Can a consumer (e.g. a user or programmer) find a functionally similar product at a similar price elsewhere? Can a new supplier easily establish itself?
From an app developer’s perspective it is impossible to distribute an iOS app except through the App Store; if there is an market – as opposed to simply a marketplace – for iOS apps, clearly Apple is in a dominant position. From a consumer’s perspective, quite obviously you can’t install an Android app on an iOS device. The fundamental question, then, is whether apps are simply an aspect of a device or a whether apps and devices are separate markets. Is there a market for iOS apps separate from Android (or other OS) apps and distinct from that of mobile phones?
Therein lies the rub. The more Apple pushes the argument that its App Store procedures differentiate iOS apps from Android apps – hence iPhones and iPads from other mobile devices – and its monopoly over the distribution of apps to iOS devices is a benefit to users, the more it is showing the EU that iOS and Android apps and devices cannot be substituted for one another; that they are indeed separate markets.
Apple may well successfully defend Epic’s case against it, but it could be a Pyrrhric victory.