EU demands answers over Apple's latest Epic Games twist — Bloc seeks explanation after Cupertino terminates Fortnite maker's developer account

Apple Logo behind a waterfall
(Image credit: Future)

The EU has waded into the latest falling out between Epic Games and Apple, after Apple terminated Epic’s developer account for iOS, preventing the company from developing an Epic Games Store marketplace for iPhone. 

On Wednesday, Epic Games released a scathing press release revealing that Apple had terminated its developer account in what Epic called a “serious violation of the DMA.” Correspondence published by the company reveals Epic Games was denied a consultation with Apple over the Digital Markets Act changes added to iPhone in iOS 17.4. An email from Apple's Phil Schiller to Epic CEO Tim Sweeney revealed the company had deep reservations about Epic’s trustworthiness, noting it had previously intentionally broken its agreements with Apple “to make a point and for financial gain.” Schiller also cited Sweeney’s outspoken public criticism of Apple’s compliance with the DMA, which Sweeney described as "hot garbage". 

Now, the EU says it has requested an explanation from Apple as to why Epic Games Sweden’s developer account was terminated, a move Apple says it had every right to make. 

Battle Royale 

As reported by Reuters, the European Commission has confirmed “We have requested further explanations on this from Apple under the DMA (Digital Markets Act)” and is “also evaluating whether Apple's actions raise doubts on their compliance with the DSA (Digital Services Act) and the P2B (Platform to Business Regulation), given the links between the developer programme membership and the App store as designated VLOP (very large online platform)."

As the report notes, the DSA states decisions to suspend or terminate accounts must be “proportionate and with due regard to fundamental rights,” while the P2B “requires a platform to notify a business user when terms and conditions are changed and before an account is closed.” 

Apple advised Epic that it had terminated Epic’s account because of Sweeney’s “wholly insufficient and not credible” response to Apple’s request for written reassurance that it was acting in good faith and would honor its agreement with Apple. Sweeney sent a two-line email that stated “Epic and its subsidiaries are acting in good faith and will comply with all terms of current and future agreements with Apple, and we’ll be glad to provide Apple with any specific further assurances on the topic that you’d like.” 

In a statement to iMore Wednesday, Apple said “Epic’s egregious breach of its contractual obligations to Apple led courts to determine that Apple has the right to terminate ‘any or all of Epic Games’ wholly owned subsidiaries, affiliates, and/or other entities under Epic Games’ control at any time and at Apple’s sole discretion.’ In light of Epic’s past and ongoing behavior, Apple chose to exercise that right.” 

As litigation expert and outspoken App Store critic Florian Mueller notes, the DMA leaves it up to Apple to define the criteria as to who can create an alternative app store, but notes “Epic’s case is a unique one, given the troubled history between the two companies.” Mueller says “The original grant of the developer account appeared to be a sign of a potential improvement of their relationship, but that may have been the result of an oversight as opposed to a conscious decision by Apple’s executives and lawyers to give Epic a chance to prove to be a reliable app store operator in the EU.” Apple has confirmed to iMore that Epic Games Sweden entered the DLPA without any executive review on Apple’s part, confirming Mueller’s suspicion. 

According to Mueller, Epic is in a tricky situation given “that it lost the antitrust part of the U.S. litigation and, as a result, also the contract part (an Apple counterclaim).” As he notes, “If Epic now goes to the EU Commission and the EC asks Apple about this, Apple will say that it has obtained a judgment according to which it’s allowed to terminate any Epic developer agreement anytime for any reason or no reason, a judgment that was affirmed by the United States Court of Appeals for the Ninth Circuit and over which Epic brought a petition for writ of certiorari (request for Supreme Court review) that was denied.” 

Mueller says the EU dispute is complicated (if you haven’t already guessed).  He says that while a Swedish court (where Epic Sweden is based) would give “very little weight to the U.S. litigation and look at this mostly through a DMA lens,” the European Commission “is more likely to be dissuaded by the history of the U.S. litigation from taking action than the courts in the EU would be.” Epic’s recourse at this stage seems limited unless the EC decides to intervene based on the findings of the aforementioned inquiries. However, at this stage, Mueller (an advocate for the DMA) concedes “With Microsoft and Meta having stated publicly that Apple’s EU app rules don’t work for them, and with Epic now having seen its EU developer account terminated, it looks like alternative app stores in the EU will in the foreseeable future just come down to “adult content” and other niches. That is not the outcome the EU institutions had in mind.”

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Stephen Warwick
News Editor

Stephen Warwick has written about Apple for five years at iMore and previously elsewhere. He covers all of iMore's latest breaking news regarding all of Apple's products and services, both hardware and software. Stephen has interviewed industry experts in a range of fields including finance, litigation, security, and more. He also specializes in curating and reviewing audio hardware and has experience beyond journalism in sound engineering, production, and design.

Before becoming a writer Stephen studied Ancient History at University and also worked at Apple for more than two years. Stephen is also a host on the iMore show, a weekly podcast recorded live that discusses the latest in breaking Apple news, as well as featuring fun trivia about all things Apple. Follow him on Twitter @stephenwarwick9

  • FFR
    Epic games isn’t a European developer so this is going to go nowhere
    Reply
  • Annie_M
    I'm epically bored with all things about Epic!
    Reply
  • FFR
    Annie_M said:
    I'm epically bored with all things about Epic!

    Is Fortnite still a thing? After getting banned from the AppStore it’s kind of ded
    Reply
  • abhibeckert
    In the Spotify case, the EU's language specifically said the relevant App Store policy was not "necessary" to protect the platform.

    That same language is also in the DMA as the only valid reason for Apple to terminate Epic's account.

    Would it kill the iPhone platform if Apple allowed Epic to have a developer account? No. It clearly was not a "necessary" thing for Apple to do which means the EU will force Apple to reverse the decision and probably also issue billions in fines along the way. Worse, it's one more click of the ratchet that gets Apple closer to orders of magnitude worse fines triggered by "repeat" or "systematic" breaches.
    Reply
  • abhibeckert
    FFR said:
    Epic games isn’t a European developer so this is going to go nowhere
    Epic plans to launch an iPhone game distribution platform that will be exclusively available in Europe.

    Apple is trying to block that. And they did it a few days before the new Digital Market Act is would be enforced. There's no way the EU ignores this.
    Reply
  • FFR
    abhibeckert said:
    In the Spotify case, the EU's language specifically said the relevant App Store policy was not "necessary" to protect the platform.

    That same language is also in the DMA as the only valid reason for Apple to terminate Epic's account.

    Would it kill the iPhone platform if Apple allowed Epic to have a developer account? No. It clearly was not a "necessary" thing for Apple to do which means the EU will force Apple to reverse the decision and probably also issue billions in fines along the way. Worse, it's one more click of the ratchet that gets Apple closer to orders of magnitude worse fines triggered by "repeat" or "systematic" breaches.

    They had a trial in the states, epic lost and had to pay Apple legal bills.

    They also determined Apple could terminate epics developer account. Don’t think the eu could do much about it at this point.
    Reply
  • FFR
    abhibeckert said:
    Epic plans to launch an iPhone game distribution platform that will be exclusively available in Europe.

    Apple is trying to block that. And they did it a few days before the new Digital Market Act is would be enforced. There's no way the EU ignores this.

    Reply
  • EdwinG
    Epic SE’s account has been reinstated, pending the signature of the agreement, as of 10 minutes ago.

    Source:
    https://sixcolors.com/post/2024/03/epics-app-store-developer-account-restored-in-europe-once-again/
    Reply
  • FFR
    Epic had no choice but to agree to apples terms.

    Reply