Dutch competition watchdog ACM continues scrutiny of in-app payment services

In August 2021, the ACM decided that Apple is abusing its dominant position by imposing unreasonable conditions for in-app payment services to dating app providers (see our previous article on this investigation here). Although Apple requested relief for suspension of the penalty order decision and its publication, the Rotterdam District Court upheld the penalty order for Apple to amend its terms and conditions for these dating-app providers on the Dutch Store Front no later than 15 January 2022. As Apple did not comply with the ACM’s order, it forfeited the maximum penalty of EUR 50 million.

While Apple claims to be taking next steps to comply with the ACM’s order, the ACM does not seem convinced. Various media report[1] that the ACM may decide to impose another order on Apple, subject to periodic (and higher) penalty payments, with a view to force Apple to fully comply with the order.

Following the investigation into Apple, the ACM is now reported[2] to investigate Google's app store rules as well. This investigation is the result of complaints of the Match Group, the owner of multiple dating apps including Tinder. The Match Group complained about the terms and conditions for the in-app payment service Google Play Billing, which requires developers to use Google Play Billing for the sale of app services according to its payments policy, prohibiting developers to refer to other payment methods. Although the investigation into Google is similar to the investigation ACM has conducted into Apple, the outcome may be different. Google argues that Android users are not strictly bound by using the Google Play Store, as other stores are also available. This differs from Apple, as dating apps can only be offered via the App Store for iPhone users, making makes dating-app providers fully dependent on Apple, while bounding Apple by strict competition rules. Considering that the vast majority of Android users make use of the Google Play Store, it is very likely that the ACM will use this as an argument to stress the importance of the strict competition regulations applying to Google as well, resulting into strong similarities between the Apple and Google investigations.

Before we can see any enforcement action from the ACM, the latter will need to investigate if there is any value in the complaints of the Match Group relating to Google or whether the complaint attempts to lift on the order against Apple. It will take some time before the outcome of this investigation will be published by the ACM, as such investigations usually take several years to be concluded.

Furthermore, it should also be taken into account that the investigation into Google is based on complaints by market participants, whereas the ACM started the investigation into Apple itself ex officio following indications the ACM received from app providers over the course of its market study into app stores. Accordingly, the enforcement request into Google may be rejected based on the ACM’s prioritization policy.

We are looking forward to the outcome of ACM’s investigation in relation to in-app payment services and we will watch any updates closely.

For more information contact Pauline Kuipers,  Joost van Roosmalen or Daniëlle van de Vijver

Visit our Competition & EU homepage

[1] See for example https://www.politico.eu/article/google-app-store-under-investigation-for-antitrust-abuses/.

[2] See for example https://nos.nl/artikel/2427519-acm-start-vooronderzoek-naar-google-na-klacht-over-machtsmisbruik (only in Dutch).