Commissioner Almunia addresses concerns over Apple’s alleged anticompetitive practices

On 28 March 2011, Competition Commissioner Almunia replied to a question of Member of the European Parliament Arlene McCarthy regarding the Commission’s approach to the new electronic goods market.

In particular, the question raised concerns as to the potential anticompetitive practices by Apple, owing to the relationship between Apple hardware products (e.g. iPhone, iPad) and its iTunes online store, which appear to make it difficult for consumers to purchase certain products in electronic format (e.g. songs, books, news services etc.) from sources or devices other than Apple’s. Basically, Mrs. McCarthy asked whether Apple’s tying practice may constitute an abuse of dominance under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), similar to Microsoft’s tying of its web browser to its Windows operating system.

Mr. Almunia stressed that whether Apple’s behavior concerning the link between its hardware products and software products constitutes a violation of Article 102 TFEU depends on a range of factual, legal, and economic elements, among which the finding of a dominant position in the relevant market(s) is a preliminary condition. Mr. Almunia noted that it is not clear that Apple (or any other company) holds a dominant position in the market(s) to which the iPod Touch, the iPhone and the iPad belong.  The reason being that such products are still relatively new and evolving and there are, or will shortly be launched, a large number of devices that can provide similar functionalities.  In contrast, the Commission found that Microsoft held a clear dominant position on the client PC operating system. Commissioner Almunia nonetheless emphasized that the Commission remains committed to ensuring the full respect of European competition rules. [Gabriele Accardo]