Platform and Device Neutrality Regime: The New Competition Rulebook for App Stores?

AuthorOscar Borgogno,Giuseppe Colangelo
DOIhttp://doi.org/10.1177/0003603X221103122
Published date01 September 2022
Date01 September 2022
Subject MatterArticle
https://doi.org/10.1177/0003603X221103122
The Antitrust Bulletin
2022, Vol. 67(3) 451 –494
© The Author(s) 2022
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DOI: 10.1177/0003603X221103122
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Article
Platform and Device Neutrality
Regime: The New Competition
Rulebook for App Stores?
Oscar Borgogno* and Giuseppe Colangelo**
Abstract
Among the numerous legislative initiatives implemented around the globe on digital platforms, some
of these provisions are explicitly directed toward app stores. As they have all the distinctive features
of multi-sided markets, app store owners represent the prototype of digital gatekeepers, controlling
access to mobile ecosystems and competing with business users operating on the platforms. In light of
the rule-setting and dual role of these gateway players, regulatory interventions are required in order
to ensure that large app stores are treated like common carriers or public utilities, thereby imposing
upon them a neutrality regime vis-à-vis new entrants. For the very same reasons, dominant app store
providers have been subject to an increasing number of antitrust investigations attempting to ensure
equal treatment and to avoid self-preferencing at the expense of rivals’ services. Against this background,
the article investigates whether antitrust provisions are flexible enough to curb anticompetitive practices
carried out by app stores and the extent to which regulatory interventions could, on the other hand, be
necessary in order to address the seemingly unique features of the app economy.
Keywords
digital platforms, app store, competition policy, neutrality, self-preferencing, interoperability
I. Introduction
App stores are at the forefront of the debate on the regulation of the digital markets. Indeed, they rep-
resent the prototype of multi-sided platforms, having all their distinctive features: the presence of sig-
nificant indirect network effects and economies of scale and scope leading to highly concentrated and
not easily contestable markets; the growth in ecosystems providing a variety of products and services
that serve as vital gateways for business users to reach potential end customers; the control and inter-
mediation power exerted by gatekeepers, which act as private regulators, determining the terms and
conditions under which users can join the network, playing a dual role as both intermediaries and trad-
ing operators on the platform.
*Bank of Italy, Rome, Italy; PhD Candidate, University of Turin, Turin, Italy; MSc, University of Oxford, Oxford, UK
**Jean Monnet Professor of EU Innovation Policy, and Associate Professor of Law and Economics, University of Basilicata,
Potenza, Italy; TTLF Fellow, Stanford Law School, Stanford, CA, USA
Corresponding Author:
Giuseppe Colangelo, University of Basilicata, 85100 Potenza PZ, Italy.
Email: giuseppe.colangelo@unibas.it
1103122ABXXXX10.1177/0003603X221103122The Antitrust BulletinBorgogno and Colangelo
research-article2022
452 The Antitrust Bulletin 67(3)
With regard to app stores, the gatekeeping position of Apple and Google, and the related concerns
about their rule-setting and dual role have been the subject of market studies launched by the Australian
Competition and Consumer Commission (ACCC),1 the Netherlands Authority for Consumers &
Markets (ACM),2 the U.K. Competition and Markets Authority (CMA),3 the Japan Federal Trade
Commission (JFTC),4 and the U.S. House of Representatives.5 Furthermore, the terms and conditions
for accessing app stores, such as in-app purchasing rules and restrictions on the freedom of choice
regarding payment apps on smartphones, are being scrutinized by courts and antitrust authorities all
around the world. Moreover, numerous legislative initiatives have been implemented to safeguard mar-
ket contestability and establish a level playing field by promoting regulatory approaches that essen-
tially aim to characterize large digital platforms as common carriers or public utilities in order to
impose upon them a neutrality regime. Notably, a new ex ante regulatory regime has been advanced in
the European Commission’s Digital Markets Act (DMA) proposal and in the CMA’s code of conduct
aimed at governing online platforms with “gatekeeping” position or “strategic market status,” respec-
tively.6 In pursuing the same goal, Germany has strengthened its national Competition Act (GWB),
introducing a new Section 19a which sets specific standards of conduct for undertakings of “paramount
significance for competition across markets.”7 In a similar vein, in June 2021, the U.S. House of
Representatives unveiled a five-bill antitrust package designed to curb the market power of large online
platforms representing “critical trading partners.”8
This approach was endorsed by the European General Court in the recent Google Shopping9 case.
The Court relied on a principle of equal treatment, considering it to be a general principle of the
European Union (EU) law inferred from case law applied to public undertakings.10
Despite their differences, the legislative initiatives cited above do share the same aims and concerns.
By and large, the call for action stems from the hurdles experienced by antitrust enforcers, aiming to
1. Australian Competition and Consumer Commission, Digital Platform Services Inquiry – App Marketplaces (2021), https://
www.accc.gov.au/media-release/dominance-of-apple-and-google’s-app-stores-impacting-competition-and-consumers.
Accessed Oct. 10, 2021.
2. The Netherlands Authority for Consumers & Markets, Market Study into Mobile App Stores (2019), https://www.concur-
rences.com/IMG/pdf/netherlands.pdf?59309/382a5b83e90b93529caf6e9943b8c0ec1062e1f2. Accessed Oct. 10, 2021.
3. UK Competition and Markets Authority, Mobile Ecosystems Market Study, Interim Report (2021), https://www.gov.uk/
cma-cases/mobile-ecosystems-market-study. Accessed Dec. 20, 2021.
4. The Japan Federal Trade Commission, Report Regarding Trade Practices on Digital Platforms (2019), https://www.jftc.
go.jp/en/pressreleases/yearly-2019/October/191031.html. Accessed Oct. 10, 2021.
5. U.S. House of Representatives, Subcommittee on Antitrust, Commercial, and Administrative Law, Investigation of
Competition in Digital Markets, Majority Staff Reports and Recommendations (2020), https://judiciary.house.gov/upload-
edfiles/competition_in_digital_markets.pdf?utm_campaign=4493-519. Accessed Oct. 10, 2021.
6. European Commission, Proposal for a Regulation on Contestable and Fair Markets in the Digital Sector (Digital Markets
Act), COM(2020) 842 final; UK Competition and Markets Authority, A New Pro-Competition Regime for Digital Markets.
Advice of the Digital Markets Taskforce (2020), https://www.gov.uk/cma-cases/digital-markets-taskforce. Accessed Oct.
10, 2021.
7. Gesetz zur Änderung des Gesetzes gegen Wettbewerbs- beschränkungen für ein fokussiertes, proaktives und digitales
Wettbewerbsrecht 4.0 und anderer Bestimmungen (GWB- Digitalisierungsgesetz), Jan. 18, 2021.
8. See H.R. 3816, American Choice and Innovation Online Act, https://www.congress.gov/bill/117th-congress/house-
bill/3816/text?r=43&s=1. Accessed Oct. 15, 2021; H.R. 3825, Ending Platform Monopolies Act, https://www.congress.
gov/bill/117th-congress/house-bill/3825/text?r=34&s=1. Accessed Oct. 15, 2021; H.R. 3826, Platform Competition and
Opportunity Act, https://www.congress.gov/bill/117th-congress/house-bill/3826?s=1&r=5. Accessed Oct. 15, 2021; H.R.
3843, Merger Filing Fee Modernization Act, https://www.congress.gov/bill/117th-congress/house-bill/3843?s=1&r=11.
Accessed Oct. 15, 2021, and H.R. 3849, Augmenting Compatibility and Competition by Enabling Service Switching
(ACCESS) Act, https://www.congress.gov/bill/117th-congress/house-bill/3849?s=1&r=1. Accessed Oct. 15, 2021.
9. General Court, Nov. 10, 2021, Case T-612/17, Google LLC and Alphabet Inc. v. European Commission.
10. Id. at para. 155.
Borgogno and Colangelo 453
remedy an enforcement failure.11 With regard to the digital markets, antitrust is considered to be falling
short mainly because competition rules apply ex post and require an extensive investigation on a case-
by-case basis. Therefore, corrective tools are required to speed up the enforcement process and to
achieve the result of prohibiting certain practices.
Against this background, some of the obligations envisaged are clearly addressed to app stores in an
attempt to introduce a platform and device neutrality regime. Notably, the European DMA, the German
Section 19a, and some of the U.S. bills (in particular, the American Choice and Innovation Online Act, and the
Augmenting Compatibility and Competition by Enabling Service Switching Act, and the Ending Platform
Monopolies Act) prohibit, for instance, the designated platforms from: discriminating between users by
engaging in self-preferencing and applying unfair access conditions; preventing users from sideloading (i.e.,
installing apps without going through an app store) and un-installing pre-installed apps; impeding data porta-
bility and interoperability; and imposing anti-steering provisions. Moreover, in August 2021, an ad hoc app
store bill (“Open App Markets Act”) was introduced in the U.S. Senate to reduce “gatekeeper power” in the
app economy.12 Finally, although the U.K. regime follows a principle-based rather than a rule-based approach
that relies on firm-specific codes of conduct, the CMA has also suggested a range of procompetitive interven-
tions (including third-party access to data, interoperability and common standards, interventions to overcome
consumer inertia and default bias, obligations to provide access on fair and reasonable terms, and separation
remedies) that cannot be achieved via codes of conduct and would have a major impact on app stores.13 In its
Interim Report on mobile ecosystems, the CMA has considered possible interventions aimed at addressing
Apple and Google’s market power, which include allowing sideloading and removing anti-steering provisions
and restrictions to alternative payment options for in-app purchases.14 The findings of the CMA’s market
study on mobile ecosystems will provide information on how the regime is designed and implemented by the
newly appointed Digital Markets Unit, supporting the development of codes of conduct in relation to app
stores and the potential use of the aforementioned procompetitive interventions.
However, the very first country to approve legislation on app stores was South Korea. Its Legislation
and Judiciary Committee, indeed, supported the amendment to the Telecommunications Business Act
which, among other things, will prohibit app store operators in dominant market positions from forcing
payment systems upon content providers and inappropriately delaying the review of, or deleting,
mobile contents from app markets.15
Against this background, this article aims to investigate whether antitrust provisions are flexible
enough to keep up with the dynamics of digital app stores and whether regulatory interventions are, on
the other hand, required in order to address their unique features.
The work is structured as follows. Section II describes the role and economic features of app stores.
Section III analyses antitrust investigations and private litigation initiated against Google and Apple
stores by focusing on the different practices at stake. Section IV illustrates the regulatory initiatives
recently implemented to address the seemingly distinctive features of the digital markets and the stra-
tegic role played by large online platforms. Section V explores how the main anticompetitive practices
within app stores can be tackled by current antitrust rules and the potential role played by regulation in
bridging the enforcement gaps. Section VI concludes.
11. Marco Cappai & Giuseppe Colangelo, Taming Digital Gatekeepers: The ‘more regulatory approach’ to Antitrust Law, 41
Comput. L. Secur. Rev. 105559 (2021).
12. S. 2710, Open App Markets Act, https://www.blumenthal.senate.gov/imo/media/doc/8.11.21%20-%20Open%20App%20
Markets%20Act%20-%20Bill%20Text.pdf. Accessed Oct. 15, 2021.
13. UK Competition and Markets Authority, supra note 6, at para. 4.68.
14. UK Competition and Markets Authority, supra note 3, at 27–31.
15. Jiyoung Sohn, Google, Apple Hit by First Law Threatening Dominance Over App-Store Payments, Wall Street J., Aug.
31, 2021, https://www.wsj.com/articles/google-apple-hit-in-south-korea-by-worlds-first-law-ending-their-dominance-
over-app-store-payments-11630403335?st=dh3dbi4h20et6lc&reflink=article_copyURL_share. Accessed Oct. 15, 2021.

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