Hausfeld has responded to the Competition and Markets Authority’s invitation to comment on its proposed mobile ecosystems market study
On 15 June 2021, the CMA launched a market study into mobile ecosystems, with a particular focus on how Apple’s and Google’s market power may be harming consumers and businesses. In particular, the CMA proposes to take a closer look at how the tech giants’ ‘effective duopoly’ over the supply of operating systems (iOS and Android), app stores (App Store and Play Store), and web browsers (Safari and Chrome) may stifle competition and result in less choice, higher prices, and reduced innovation and quality for end-users.
The CMA offered interested parties the opportunity to provide views and comments on the statement of scope for the proposed study. As we possess significant experience of litigating complex cases at the intersection of competition law and technology and are bringing a number of landmark collective/group actions  on behalf of consumers and businesses against Big Tech, we welcomed the opportunity to share our expertise with the CMA and made some, hopefully beneficial, observations.
In our submission, we draw the CMA’s attention to the work of other regulators in this area, including the Australian Competition and Consumer Commission, and recommend that the CMA includes an additional theme within its market study, focusing on Google’s and Apple’s preferential access to data within their respective mobile ecosystems, and its effect on competition. The areas that warrant further specific consideration by the CMA in our view are:
- The effect of Apple’s and Google’s data practices on app developers. Within their ecosystems, Apple and Google are able to collect data from and monitor the performance of all or the vast majority of apps. As a result, they are likely to gain valuable insights to assist the development of their own proprietary apps – this has the potential to stifle competition and innovation in the downstream app distribution market; and
- The effect of those data practices on end-users. There is evidence that Apple’s and Google’s conduct towards app developers may in turn lead to an erosion of privacy and data protection for consumers. In particular, Google’s app pre-installation model is likely to enable it to benefit from very extensive tracking at the expense of users’ privacy.
In that context, we recommend that the CMA carefully considers a variety of sources of independent consumer research in relation to consumers’ attitudes towards pre-installed apps and the extent to which data privacy considerations influence their choice of apps.
The CMA is due to conduct the market study over the next year, gathering evidence from a wide range of stakeholders. It intends to publish an interim report within six months and a final report within twelve months setting out its findings, any concerns it identifies and its proposed recommendations or remedies to address those concerns. The CMA’s final report will be published no later than 14 June 2022.
1. Before the High Court in the context of breaches of data protection (McCann v Google, Jukes v Facebook) and before the Competition Appeal Tribunal in the context of breaches of competition law (Which? v Qualcomm, Dr Kent v Apple, Coll v Google).