The investigation by the Competition and Markets Authority (CMA) was intending to look into the influence and control that Apple Inc. and Alphabet Inc., the owner of Google, has over a range of platforms including mobile web browsers, app stores, gaming and operating systems. The investigation was triggered by its findings in its mobile browser market study and was aimed at the question of whether the two organisations’ level of control amounted to a stranglehold that resisted fair competition preventing consumer choice.
Apple Inc. embarked on a legal challenge to the validity of the CMA’s investigation arguing that the investigation was started too late and did not follow the rules on timing, therefore the investigation was invalid. The timings were imposed by Parliament to control and limit the length of time during which businesses would be subject to an investigation hanging over them and also to ensure that the CMA used its available resources efficiently. Competition Appeal Tribunal ruled that the consultation process proposed by the CMA was timed out and therefore could not go ahead.
Gonzalo Butori, a partner, stated “the CMA is an independent body that protects consumers from devious trading practices such as the development of price-fixing cartels that restrict or prevent competition.” Gonzalo further commented “Apple Inc. has won on a technicality. However, Competition Appeal Tribunal has not ruled out the possibility of an investigation at a later date. The delay to the investigation was due to the belief by the CMA that the government was about to introduce new legislation granting it additional powers over digital markets; as this was not accepted by the Competition Appeal Tribunal as sufficient reason to exceed the timings to start a probe, it enabled Apple Inc. to succeed in their challenge.”
Giambrone & Partners’ expert corporate and commercial lawyers noted that the CMA found Apple and Google are effectively the major entities in control over operating systems, app stores and web browsers on mobile devices and there are significant concerns over Apple’s Safari and Google’s Chrome browsers being set as the default browsers on devices due to pre-installation. Also, rival browsers such as Chrome, Edge, Firefox, and other popular web browsers like Opera and DuckDuckGo are all currently forced to use WebKit.
As the CMA is the only body that can scrutinize the behaviour of large conglomerates and their practices that limit competition across a range of markets, the Tribunal’s judgment could be considered to undermine the CMA and its ability to step-in and intervene where it is perceived that competition is being deliberately impeded, which prevents the watchdog from protecting consumers from sharp practice and questionable business dealings. In light of the importance of this case the CMA are considering an appeal.
Giambrone & Partners’ lawyers believe that all investigations are intended to ensure that consumers in the United Kingdom are protected and have better choices and most particularly that they are not manipulated by big business, are extremely important and that the decision by the Competition Appeal Tribunal is disappointing.
Gonzalo Butori has acted in a wide range of international and domestic commercial disputes. He has experience dealing with complex, high-value cross-border litigation.
He has particular proficiency with regard to dispute resolution and represents claimants and defendants in all jurisdictions on civil and commercial matters and regularly appears at mediation and arbitration hearings. He has acted as co-advocate in international commercial disputes under ICC rules as well as in other Alternative Dispute Resolution (ADR) proceedings.
Gonzalo is recognised for his pragmatic approach and solution-based strategies as well as his robust capacity when pursuing his clients’ best interests. When heavy disclosure in foreign languages is required, he develops and delivers technical solutions to ease the cost burden for clients.
He has assisted in a number of cross-border transactions involving various EU jurisdictions and achieved successful results. He also specialises in the conflict of laws and jurisdiction.