Final Report of the Hearing Officer – Case AT.40437 — Apple App Store Practices (music streaming)
Date: 2024-03-01
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, European Economic Area, broadcasting, control of restrictive practices, dominant position, electronic commerce, mobile application, music, sanction (EU)








C_202403556EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/3556


7.6.2024






Final Report of the Hearing Officer (1)

Case AT.40437 — Apple App Store Practices (music streaming)
(Text with EEA relevance)
(C/2024/3556)

1.   INTRODUCTION









1.


The draft decision concerns an abuse of a dominant position by Apple Inc. and Apple Distribution International Limited (hereafter collectively referred as ‘Apple’). The Commission takes issue, specifically, with certain provisions that Apple requires developers of software applications (‘apps’) for music streaming services (‘MSS’) on Apple’s smart mobile devices (2) to adhere to as part of the contractual relationship underpinning their presence on Apple’s ‘App Store’.












2.


These provisions, hereafter referred to as the ‘Anti-Steering Provisions’, prevent MSS providers ‘from informing iOS users about alternative subscription possibilities existing outside of those providers’ iOS mobile app and from allowing iOS users to exercise an effective choice between alternative subscription possibilities’ (3). The Commission concludes that Apple’s conduct amounts to an imposition of unfair trading conditions within the meaning of Article 102(a) TFEU, detrimental to the interests of iOS users (4).












3.


A first statement of objections (‘SO’) was issued in this case on 30 April 2021. This SO was replaced by a supplementary SO on 28 February 2023 (hereafter, the ‘Replacement SO’ or ‘RSO’). The procedural developments in this case are set out in Sections 2 and 3 of this Report. Section 4 analyses a number of procedural complaints raised by Apple.




2.   THE PROCEDURE UNTIL THE REPLACEMENT SO

2.1.   Investigation phase









4.


As from 2013, the Commission was contacted by Spotify AB (‘Spotify’ or the ‘complainant’) informing about certain conduct of Apple in regard of MSS providers active in the App Store. A series of meetings and calls took place with the complainant, as well as with Apple, in 2015 and the following years. A first request for information (‘RFI’) was addressed to the complainant on 31 July 2015. Further RFIs were sent to Spotify, Apple and other MSS providers through the proceedings.












5.


On 11 March 2019, Spotify submitted a formal complaint pursuant to Article 7 of Regulation No 1/2003 (5) (followed on 9 April 2019 by an amended final version of the complaint). In its complaint, Spotify alleged, inter alia, , that Apple prevented Spotify from advertising the existence of its Premium option within, and to some extent also outside, the app, thus effectively restricting the promotion of cheaper subscription possibilities outside the iOS environment to iOS users. In this context, the Commission gave Apple early access to the complaint and to further documents and information that it received from the complainant, including in a data room, and gave to both the opportunity to comment on each other’s submissions.












6.


In the course of the investigation, in February 2020, the complainant conducted a survey of its users to analyse consumer choice of smart mobile devices and the role that music streaming apps/services play for that choice (the ‘Spotify Survey’ (6)). […]’ (7)). The preparation of […] survey[…] had been discussed between, […] Spotify and the case team in DG Competition as from June 2019. In particular, after having explored (and abandoned (8)) the idea of conducting an internal survey, DG Competition contacted […] Spotify […] proposing […] to conduct the survey […], under the Commission’s indications, in order to ensure that the survey results would be useful for the purposes of the investigation.












7.


On 16 June 2020, the Commission initiated proceedings pursuant to Article 11(6) of Regulation No 1/2003 and Article 2(1) of Council Regulation No 773/2004 (9).




2.2.   The SO of 30 April 2021
                        









8.


The Commission adopted a first SO on 30 April 2021. In that SO, it reached the preliminary conclusion that Apple abused its dominant position in the market for distribution platforms for music streaming apps to iOS users, through the imposition of the in-app-purchase mechanism (‘IAP Obligation’) and the Anti-Steering Provisions on developers of music streaming apps (10). It preliminarily concluded that these practices were jointly capable of leading to an appreciable distortion of competition in the EEA-wide market for music streaming services, where Apple directly competes with developers of music streaming apps through Apple Music. The SO concluded that the two practices raised competitors’ costs and forced them to either increase their subscription prices on iOS or to disable in-app subscriptions on iOS devices, in both cases reducing their profitability (11). According to the SO, the two practices constituted a single and continuous infringement of Articles 102 TFEU and 54 of the EEA Agreement and that the Anti-Steering Provisions also on their own infringed Article 102 TFEU (12).




2.3.   Access to the file in the context of the first SO









9.


Apple was initially granted access to the file on 12 May 2021.












10.


On 13 June 2021, Apple requested additional access to file from DG Competition. As a result, between 5 and 12 July 2021, and after consulting with the relevant information providers, DG Competition gave Apple’s external advisors further access to certain confidential documents via a data room procedure. Apple’s external advisors then produced a data room report which was reviewed for confidential information by DG Competition and disclosed to Apple in its redacted form.












11.


On 22 July 2021, Apple addressed to me a request pursuant to Article 7 of Decision 2011/695/EU, for further access to a less redacted version of the data room report referred to in paragraph 10 above and to unredacted versions of certain other documents.












12.


Apple withdrew the request in its entirety on 27 September 2021, thereby removing the need for a decision based on Article 7 of Decision 2011/695/EU.












13.


On 9 July 2021, Apple requested access to unredacted versions of certain additional responses to RFIs from (inter alia) Google LLC (‘Google’). To respond to that request, DG Competition informed Google of its intention to disclose certain documents to Apple’s external advisors in a data room. Google objected to the disclosure of certain of the RFI responses in question, (13) and on 19 July 2021 addressed its objections to me, pursuant to Article 8(2) of Decision 2011/695/EU.












14.


On 30 August 2021, I adopted a decision under Article 8 of Decision 2011/695/EU, concluding that the contested information could be made accessible to Apple’s external advisors in a data room, under certain conditions set out in the decision. DG Competition granted access to the contested information to Apple’s advisors in a data room on 9 September 2021.




2.4.   Time limits and response to the first SO









15.


Apple was initially imparted a time limit of 12 weeks to provide its response to the SO. Following a request to DG Competition, an extension until 3 September 2021 was granted.












16.


On 27 August 2021, Apple requested a further extension until 17 September 2021, which DG Competition denied. On 1 September 2021, Apple referred the matter to me, in accordance with Article 9 of Decision 2011/695/EU, pointing inter alia to the then unresolved request for further access to the file (paragraph 11 above). I granted the requested extension.












17.


Apple submitted its written reply to the SO on 17 September 2021. Apple did not request the opportunity to develop its arguments at an oral hearing.




2.5.   Interested third persons









18.


Between 31 May 2021 and 30 July 2021, I admitted the European Consumer Organisation BEUC (‘BEUC’), Google, and the Computer & Communication Industry Association (‘CCIA’) as interested third persons in accordance with Article 5 of Decision 2011/695/EU.












19.


Conversely, I rejected the application of an undertaking that is present in Apple’s App Store with an app that does not supply MSS, to be heard as interested third person in the present case. The applicant relied principally on the argument that the findings that the Commission may reach in this case would affect, directly or indirectly, any developer whose app competes with Apple’s own apps in its App Store, including developers of apps in the applicant’s field of activity.












20.


My decision of 4 August 2021, rejecting the application, pointed out, inter alia, that the ‘sufficient interest’ of a prospective interested third person needs to be assessed in view of the subject-matter of the case as determined by the Commission’s decision initiating proceedings pursuant to Article 11(6) of Regulation No 1/2003 and Article 2 of Regulation No 773/2004. This decision was, in the case at hand, focused on specific practices and a specific sector (in essence, the IAP Obligation and Anti-Steering Provisions in the context of music streaming apps). An interest in the outcome of a case as a possible ‘precedent’ for matters that lie outside the scope of the decision initiating proceedings, does not suffice to find a ‘sufficient interest’ within the meaning of Articles 5(2) of Decision 2011/695/EU and 13(1) of Regulation No 773/2004. The decision was not appealed and became final.




3.   REPLACEMENT SO OF 28 FEBRUARY 2023 AND FURTHER DEVELOPMENTS









21.


On 28 February 2023, the Commission adopted the Replacement SO, which was notified to Apple on 1 March 2023. The cover letter was corrected immediately afterwards by a corrigendum sent to Apple on 3 March 2023.












22.


The RSO is defined as a ‘Supplementary Statement of Objections’ (14) which ‘replaces the SO of 30 April 2021 and presents the facts, the Commission’s preliminary objections and legal analysis in a comprehensive manner’ (15). The RSO limited the scope of the objections raised in this case to Apple’s Anti-Steering Provisions.












23.


In the RSO, the Commission preliminarily concluded that Apple holds a dominant position in the EEA-wide market for the provision to developers of platforms for the distribution of music streaming apps to iOS users, as the App Store serves as an exclusive gateway to iOS users (16). According to the RSO, ‘as a result of this dominant position Apple has a special responsibility to ensure inter alia that it does not impose unfair trading conditions on music streaming app developers’ (17).












24.


The Commission then preliminarily concluded that Apple’s Anti-Steering Provisions constitute unfair trading conditions within the meaning of Article 102(a) TFEU, since: (i) they are unilaterally imposed by Apple (18); (ii) they are detrimental to the interests of iOS users of MSS, i.e. consumers, (19) as well as to the interests of music streaming service providers competing with Apple Music on the iOS platform (20); and (iii) they are not necessary for the achievement of a legitimate objective and in any event not proportionate for that purpose (21). Furthermore, the Commission preliminarily considered that the Anti-Steering Provisions are not objectively justified (22).












25.


The Commission took the preliminary view that the infringement covers the entire territory of the EEA, started at the latest on 30 June 2015 (date of launch of Apple Music) and is still ongoing (23).












26.


The Commission also informed Apple of its preliminary intention to impose a fine on Apple for the infringement. After setting out the principles laid down in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (‘Fining Guidelines’) (24), the Commission informed Apple that for the calculation of the value of sales it intended ‘to take into account the turnover generated by Apple in the EEA from the App Store commission fees paid by music streaming providers to Apple as well as the revenues that Apple generated with Apple Music in the EEA during the last full business year of the infringement.’ (25) The Commission also stated that ‘particular attention should be paid to the need to ensure that fines have a sufficiently deterrent effect; to that end, the fine to be imposed on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates may be increased’ (26). Accordingly, the RSO stated the Commission’s preliminary intention to ‘set the fine at a level which will be sufficient to ensure deterrence’ (27).




3.1.   Access to the file following the RSO









27.


Apple received access to the file on 7 March 2023, by means of electronic transfer of the documents forming part of the case file. Following a request made by Apple on 28 March 2023, DG Competition gave Apple access to three additional documents on 6 April 2023.












28.


I did not receive any requests or complaints concerning access to the file following the RSO.




3.2.   Time limits and response to the RSO









29.


Apple initially received a time limit of eight weeks to reply to the RSO, starting from 7 March 2023 (date on which it received access to the file).












30.


On 12 April 2023, Apple submitted to DG Competition a request for extension of the time limit, until 1 June 2023, which DG Competition rejected with letter of 17 April 2023.












31.


On 18 April 2023, Apple referred the matter to me, pursuant to Article 9 of Decision 2011/695/EU. I granted Apple an extension until 19 May 2023, rejecting the request for the remainder (28).












32.


On 19 May 2023, Apple submitted its reply to the RSO (the ‘RSO reply’), in which it requested the opportunity to develop its arguments at an oral hearing, pursuant to Article 12(1) of Regulation No 773/2004.




3.3.   Oral hearing









33.


The oral hearing took place on 30 June 2023. It saw the participation of representatives of Apple, of the complainant and of an interested third person (BEUC). The hearing proceeded smoothly and there were no procedural complaints in connection to the hearing.




3.4.   Letter of Facts









34.


On 6 December 2023, the Commission issued a letter of facts (‘Letter of Facts’) informing Apple of ‘additional factual elements and evidence on which the Commission may rely to further support its preliminary conclusions in the RSO’ (29).












35.


Through the Letter of Facts, the Commission also informed Apple that it intended to focus on the finding that Apple infringed Article 102(a) TFEU insofar as its Anti-Steering Provisions give rise to the imposition of unfair trading conditions to the detriment of iOS users; and that, conversely, it did no longer intend to rely on its preliminary findings in the RSO that the Anti-Steering Provisions give rise to the imposition of unfair trading conditions to the detriment of developers of music streaming apps (30). The Letter of Facts communicated to Apple elements and evidence intended to be used in further support of the preliminary conclusion on the unfair character of the Anti-Steering Provisions vis-à-vis iOS users (31). Some of these elements and evidence were previously presented in the RSO in the section containing the analysis of the unfair character of the Anti-Steering Provisions vis-à-vis developers of music streaming apps.












36.


Furthermore, the Commission informed Apple that it was ‘considering adjusting the calculation of the fine in the present case’. To reflect the narrowing down of the objections initially presented in the RSO, the Commission stated its intention to ‘determine the value of sales only on the basis of the turnover generated by Apple in the EEA from the App Store commission fees paid by music streaming providers to Apple’ while no longer taking into account the revenues that Apple generated with Apple Music in the EEA (32). However, due to the specificities of the case, and due to the fact that the value of sales thus calculated would ‘neither sufficiently reflect the nature nor the extent of the harm caused by the infringement’, (33) the Commission informed Apple that it might consider applying point 37 of the Fining Guidelines (34) to impose an additional lump sum on Apple, so as to ensure that the fine imposed is ‘sufficiently deterrent, both specifically with regard to Apple as well as with regard to other dominant undertakings in general’, that ‘[it] is proportionate and that it reflects the gravity and duration of the infringement’ (35).




3.4.1.   Access to the file following the Letter of Facts









37.


On 7 December 2023, Apple was granted access to the accessible documents added to the file between the adoption of the RSO and the adoption of the Letter of Facts. Following a request made by Apple on 13 December 2023, DG Competition gave Apple further access to additional documents on 15 December 2023.












38.


I did not receive any requests or complaints from Apple concerning access to the file following the Letter of Facts.




3.4.2.   Requests to the hearing officer following the Letter of Facts









39.


The Commission gave Apple until 12 January 2024 to provide its written comments to the Letter of Facts.












40.


With email of 8 December 2023, Apple asked DG Competition for an extension of that deadline until 16 February 2024. Apple argued, inter alia, that the Commission ‘should have issued a supplementary SO’ given that the ‘LoF fundamentally changes the nature of the alleged abuse’; and that in any event the ‘significant changes brought by the LoF to the RSO’s evidence and theory of harm justify an extension in line with the time limits for responding to a Statement of Objections’. DG Competition rejected this request with letter of 12 December 2023.












41.


By letter of 15 December 2023, Apple referred the matter to me requesting that I (i) ‘make observations pursuant to Articles 3 and 14 of [Decision 2011/695/EU] that the Commission should adopt a supplementary SO if it wishes to maintain the objections as indicated in the [Letter of Facts]’; (ii) ‘grant an extension of the time limit for the reply to the LoF indefinitely until such time as the Commission has issued a supplementary SO (if it decides to do so)’ or (iii) in the alternative, grant an extension until 26 February 2024 to reply to the Letter of Facts.












42.


Apple based its requests on the following arguments:






a)


As regards the Commission’s intention, stated in the Letter of Facts, to no longer rely on the RSO’s preliminary findings that Apple committed an abuse to the detriment of other MSS providers, Apple contended that this was not a mere reduction of the objections but amounted to a ‘material alteration of the RSO’s theory of harm and evidence’. Apple submitted that the (remaining) objection that Apple committed an abuse to the detriment of App Store users was dependent on the now abandoned allegation. In this context, Apple argued that the remaining objection in the RSO is no longer ‘sufficiently substantiated’ and its scope and substance was being substantially supplemented by the Letter of Facts (with reference to the General Court’s judgment in Case T-604/18, Google Android (36)).










b)


Apple submitted that Section 8 of the Letter of Facts, regarding the possible imposition of fines (see paragraph 35 above), amounted to a major change in the methodology and magnitude of the envisaged fine. Apple claimed that the potential application of point 37 of the Fining Guidelines, and the consequent departure from the Fining Guidelines, was not contemplated in the SO nor in the RSO, and that the Commission should have therefore adopted ‘a statement of objections and not a letter of facts to drastically modify the proposed fine and depart from the Fining Guidelines’. Apple also claimed that the contemplated application of point 37 of the fining guidelines was ‘completely inappropriate in the context of this case’, and that this approach may lead to a fine that is ‘orders of magnitude higher’ than that which could have resulted from the application of the criteria set out in the RSO.
















43.


I rejected Apple’s requests on 21 December 2023. In the first place, I noted that, while Article 3(5) and 14(2) of Decision 2011/695/EU enable the hearing officer to issue internal observations on his or her own initiative, within the institutional framework of the Commission, neither of these provisions introduce a right for a party to competition proceedings to request such action from the hearing officer.












44.


With respect to Apple’s claims according to which the Commission should have issued a supplementary statement of objections in lieu of a letter of facts, and specifically in respect of Apple’s arguments summarised in paragraph 41(a) above, I considered that:






—


in my reading, the Letter of Facts principally contained updates of factual information intended to further support the remaining objection, in line with Point 111 of the Antitrust Best Practices; (37)











—


the Letter of Facts indeed further informed Apple that the Commission was no longer retaining the allegation of an abuse to the detriment of app developers. However, firstly, a reduction of the charges set out in a statement of objections is possible in the final decision and does not (even) require a letter of facts. Secondly, and contrary to Apple’s arguments, this development did not render the remaining objection unclear. In the RSO, the Commission preliminarily concluded that both iOS users of MSSs and music streaming app developers were victims of abusive conduct, and each of those conducts, taken in isolation, fulfilled the legal test established in the RSO (38). Moreover, I could not find in the Letter of Facts a basis to conclude that the remaining objections became unclear, in the sense that Apple would not be in a position to understand which elements the Commission intended to rely on;










—


the remaining objection was also not ‘insufficiently substantiated’ in the sense of the judgment in Google Android. That objection was already explained and substantiated in detail in the RSO. In that context, the Commission was able to cross-refer to elements that were set out in the part of the RSO relating to an alleged abuse to the detriment of app developers. The Letter of Facts clarified that some of these elements remained pertinent for the assessment also following the Letter of Facts (39).
















45.


With regard to Apple’s arguments summarised in paragraph 41(b), concerning the proposed changes in fining methodology (see also paragraph 35 above), I considered that:






—


according to settled case-law concerning the exercise of the rights of defence in respect of the imposition of fines, ‘provided the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed “intentionally or negligently”, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines’ (40).










—


the Commission is allowed to inform parties, by means of a letter, about its intention to increase the amount of the fine on the basis of point 37 of the Guidelines on Fines in order to take into account the particularities of the case and to achieve deterrence. As this is not “an element of fact and of law that may give rise to a fine” the Commission is not required to mention that intention in the statement of objections or in any supplementary statement of objections, or to allow the [parties] to be heard in this regard at a hearing’
                               (41);










—


Apple’s claim that the situation in the General Court’s judgment in Campine dealt with a ‘completely different situation’, given that ‘the departure from the Fining Guidelines concerned a minor modification to the way in which the Commission calculated the value of sales’, is not convincing. The assessment as to whether a letter is an appropriate instrument in a case cannot, as a matter of principle, depend on the magnitude of the potential fine that may result from the application of point 37 of the Fining Guidelines. The contrary view would, in essence, amount to granting more or less extensive procedural rights to undertakings depending on their size.
















46.


In light of the above reasons, I rejected Apple’s request to grant an indefinite suspension of the time limit to reply to the Letter of Facts until the issuance of a supplementary statement of objections.












47.


I also rejected Apple’s request for an extension of the deadline until 26 February 2024, in light of Article 9 of Decision 2011/695/EU. Specifically, I considered the following elements: (i) the scope of the infringement was reduced; (ii) the amount on new information set out in the Letter of Facts was limited, and consisted for the vast majority of mere updates of information; (iii) sizeable parts of the information relied upon in the Letter of Facts arose from generally available industry sources; (iv) Apple did not invoke any objective obstacles faced by it in providing the response to the Letter of Facts within the deadline.




3.4.3.   Reply to the Letter of Facts - request for an oral hearing









48.


Apple submitted its reply to the Letter of Facts on 12 January 2024. In its reply, Apple requested to be heard at an oral hearing.












49.


With letter of 17 January 2024, DG Competition rejected this request, noting that Article 12 of Regulation No 773/2004 refers to the right to an oral hearing of the parties to whom the Commission ‘has addressed a statement of objections’, and that therefore the parties are ‘not entitled to an oral hearing following the adoption of a letter of facts’. DG Competition informed Apple that, in case of disagreement, it was ‘entitled to refer the matter for decision to the Hearing Officer’.












50.


On 23 January 2024, Apple submitted a corresponding request to me, asking for an oral hearing to be held. Apple maintained, as in its previous submission of 15 December 2023, that the Commission made an ‘improper use of a letter of facts’ and argued that it should be ‘entitled to make its views known at an oral hearing, irrespective of whether the Commission should have issued another statement of objections’.












51.


I rejected this request with letter of 30 January 2024, on the basis that Articles 11(1) and 12(1) of Regulation No 773/2004, as well as Article 6 and Recital 19 of Decision 2011/695/EU, exclusively grant the right to an oral hearing in antitrust cases to parties to whom the Commission has addressed a statement of objections and in connection with the parties’ written responses to a statement of objections. The legislation does not provide for an oral hearing in any other stage of the proceedings, such as after the adoption of a letter of facts. This is further corroborated by the case law on the matter (42).












52.


In light of the provisions and case-law cited, I considered that Apple did not have a right to an oral hearing and that, consequently, I had no power to grant a request for an oral hearing at that stage of the procedure. Having examined Apple’s arguments in its reply to the Letter of Facts which closely resembled those in its request of 15 December 2023, I also restated my assessment of Apple’s claim that the Commission should have adopted a supplementary statement of objections, as already set out in my Decision of 21 December 2023 (paragraphs 42 to 45 above).




4.   PROCEDURAL ARGUMENTS OF NOTE









53.


Apple raised a range of procedural points in its replies to the RSO and to the Letter of Facts, as well as during the oral hearing.




4.1.   Criticism that the Commission’s file is not up to date and other arguments relating to the evidence collected by the Commission









54.


Apple has raised a number of criticisms regarding the evidentiary basis of the case.












55.


First, in its reply to the RSO, Apple submitted that the RSO ‘fails to meet the burden of proof by relying on outdated and incomplete information and data’, and claims that the Commission ‘has not undertaken any new investigative measures before adopting the RSO’, despite ‘alleging an entirely new theory of harm’ (43). Similarly, in the reply to the Letter of Facts, Apple maintains that, ‘aside from two RFIs sent to Spotify for data updates […] the Commission took no formal new investigative steps since March 2020’ (44). Apple also claims that it provided ‘significant information on market developments’ to the Commission between 2019 and 2022, but that the Commission failed to take this information into account in the RSO (45). As a result, Apple submits that the Commission failed to ‘consider the actual development of the market’ and to provide a ‘sufficiently complete picture of the case’ (46). Apple refers to the Intel and Slovak Telekom judgments to argue that the Commission should ‘produce sufficiently precise and consistent evidence’ and should ‘take its decision on the basis of all the information which might influence that decision’ (47), including the ‘information on market developments’ submitted by Apple itself in the course of the proceedings.












56.


Second, Apple specifically pointed out at the oral hearing that, in a submission of 9 March 2022, (48) it requested the Commission to carry out further investigative measures with a view to obtain additional information on the ‘practical impact of the Anti-Steering Provisions’. Namely, Apple requested the Commission to collect the following information from MSS providers: (i) the number of emails that MSS providers sent to iOS and Android users, respectively, within 6 months after having obtained their email addresses through the sign-up function within the iOS and Android apps; and (ii) a description of any differences in the MSS providers’ practices with respect to sending out promotional emails as between iOS and Android, as well as internal documents that document any differences in platform-specific practices (49). Apple reiterated this request in its reply to the Letter of Facts (50). Apple submits that this information would be capable of proving the absence of impact of the Anti-Steering Provisions.












57.


Third, Apple argued that ‘the case file contains no exploitative evidence’ and that the evidence was collected, in essence, in view of an exclusionary rather than exploitative theory of harm (51). During the oral hearing, Apple provided examples of the questions addressed by the Commission to MSS providers in the RFIs adopted in 2019 and 2020, and argued that such questions were aimed specifically at assessing the foreclosing capability of Apple’s IAP Obligation and Anti-Steering Provisions (52). This has resulted, in Apple’s view, in ‘significant gaps in the RSO’s analysis’, which the Commission failed to address as it did not carry out additional investigative steps and fact-gathering (53).












58.


Fourth, during the oral hearing, Apple raised an additional procedural claim in respect of the consumer survey conducted by the complainant in February 2020 (see paragraph 6 above). Apple argued, in essence, that the Commission ‘unduly influenced the Spotify Survey’, as it: ‘suggested the survey to Spotify’; ‘prepared the first draft of the survey’; emphasised that the survey ‘should demonstrate lock-in effects’; and ‘directed’ the survey through the multiple calls and meetings held with the complainant on the subject (54).












59.


Apple’s claims in this respect are only in part a matter for the Hearing Officer’s Final Report. The question whether the Commission has provided sufficient proof of an infringement of Article 102 TFEU, including the probative value of specific items of evidence, is a matter of the substantive assessment of the case. Generally speaking, it is for the Commission to determine whether it considers that the evidence collected meets the standard of proof required to adopt a prohibition decision.












60.


With specific regard to the claim that the Commission relies on ‘outdated’ evidence for several of its preliminary findings in the RSO, (55) I observe that the Commission issued a Letter of Facts in which it provided updated evidence for most of the factual findings that were considered ‘outdated’ by Apple.












61.


In the reply to the Letter of Facts, Apple nevertheless claims that the Letter of Facts ‘continues to rely on outdated data’ (56) (specifically, the complainant’s experiments and […], all dating from 2018). The draft decision takes position on this criticism explaining that ‘there have been no significant market developments which call into question the results of the 2018 Spotify experiments or the […]’ (57).












62.


It is for the Commission to determine whether it considers that the evidence collected meets the standard of proof and whether the passage of time has diminished the evidentiary value of such data. It cannot therefore be concluded that a breach of a procedural requirement is at hand in this regard.












63.


The same applies, in essence, as regards Apple’s claim that it provided allegedly ‘significant information on market developments’. It is again for the Commission to assess the significance of that information, and to ascertain whether Apple brought forward elements which are capable of affecting the probative value of the evidence on which the Commission relies to demonstrate the existence of the infringement (58). In any event, it emerges from the draft decision that the market developments referred to were considered (59).












64.


As regards Apple’s specific request to collect additional information on emails sent by MSS providers, (60) it is useful to recall that as a general rule, and according to established case law, the Commission has discretion as to whether it is appropriate to adopt investigative measures (61).












65.


In Intel, the Court held that, in exceptional circumstances, the Commission may be required to ‘obtain certain documents’, at the request of the party or parties concerned, if specific criteria are fulfilled, namely: (i) that it is ‘impossible for the undertaking concerned to obtain itself the documents’; (ii) that the documents are identified as precisely as possible by the undertaking requesting them; (iii) that the documents are ‘probably being of considerable importance for the defence of the undertaking concerned’; and (iv) that the volume of documents at issue is not ‘disproportionate to the importance that the documents may have in the context of the investigation’ (62).












66.


Apple claims that the conditions set out by the General Court in Intel are met in the present instance. However, it must be recalled that the General Court also clarified that ‘[t]he Commission has a margin of discretion in deciding whether the significance of alleged exculpatory evidence justifies its obtaining that evidence and it may, for example, reject a request on the ground that the potentially exculpatory material concerns issues which are not central to the findings necessary to establish an infringement’ (63).












67.


The draft decision (at recitals 64 to 66) essentially concludes that the Commission exercised this margin of discretion and explains the reasons that led the Commission to conclude that obtaining the information according to Apple’s request was not necessary in view of other pieces of evidence already present in the file. I consider that the Commission made a legitimate exercise of its investigatory discretion and was entitled to conclude in that sense in the draft decision.












68.


My assessment of Apple’s complaint that the file ‘did not contain exploitative evidence’ (as the first SO pursued an ‘exclusionary’ theory of harm), (64) leads to a similar conclusion. Even if the Commission initially pursued other lines of investigation, that were later abandoned, this does not entail a breach of procedural rights insofar as Apple was given the opportunity to defend itself fully. In this regard, the Commission issued the RSO (paragraph 21 above) and Apple enjoyed all the procedural rights that come with the issuance of an SO, including the opportunity to develop its arguments at an oral hearing (paragraph 32 above). As stated above, the question of whether the evidence supports the findings of the draft decision is one of substance.












69.


Finally, as regards the allegations concerning the preparation of the survey conducted by the complainant, it is common ground that the proposal to the complainant (and, in parallel, to Apple) was triggered by the difficulties invoked by the undertaking[…] in relation to a survey to be commissioned by the Commission.












70.


With specific regard to the alleged ‘direction’ of the survey by the Commission, the fact of having provided guidance to the complainant in order to draft a questionnaire and carry out a survey that would be useful for the subject matter of the investigation is not in my view problematic. In this respect, DG Competition notes that its involvement in the Spotify Survey […] was essentially limited at ensuring that the survey[…] would be relevant for the case, while the survey[…] were ultimately conducted […]survey report[…] […] authored by […] complainant independently. This emerges also from a reading of the minutes of the calls between the Commission and the complainant on the subject (65). In my view, there is nothing in those minutes which would support a finding of undue interference on the part of the Commission.












71.


As regards, finally, the alleged Commission request that the survey ‘should demonstrate lock-in effects’, Apple bases this claim on two excerpts taken from the minutes of two calls between the Commission and the complainant (66). However, it is clear from a plain reading of those excerpts that the Commission did not steer the complainant towards any predetermined outcome, but rather explained that the consumer survey would be ‘necessary in order to evaluate the lock-in effects of iPhone users into the iOS ecosystem’ (67) or ‘to assess the lock-in effects of iPhone users’ (68). These sentences can be read, in essence, as a simple restatement of the purpose of the survey[…].












72.


In light of these considerations, I do not consider that the Commission committed a breach of its duty to act objectively or impartially in connection with the preparation of the Spotify Survey.












73.


In conclusion, I do not consider that Apple’s criticisms relating to the evidentiary basis of the case reveal a breach of Apple’s rights of defence.




4.2.   Complaints related to the minutes of calls and meetings









74.


In the reply to the Letter of Facts, (69) Apple raises an alleged breach of its rights of defence in relation to the alleged ‘failure for the Commission’s minutes to meet the legal standard required to ensure the effective exercise of Apple’s rights of defence’ (70).












75.


Apple claims that 29 minutes of calls and meetings in the file (71) only provide ‘a brief summary of the subjects addressed during the meeting which is manifestly insufficient detailed to reflect the discussions’, and that therefore these minutes fail to comply with Article 19 of Regulation No 1/2003 as interpreted by the recent line of case-law of the EU Courts starting with Intel (72).












76.


Specifically, with regard to most of the minutes in question, Apple claims that the content of the meeting is summarised in insufficient detail. With regard to a certain number of minutes, Apple also complains that they do not specify the participants or the duration of the underlying call or meeting. In respect of certain meetings in which a presentation was used (and to which Apple received access), Apple claims that ‘the fact that a presentation was prepared is incapable of remedying the Commission’s failure to provide Apple with an indication of the content of the discussions which took place’ (73).












77.


Apple also claims, for each of those minutes, that ‘the information discussed would have enabled Apple to better ensure its defence’ (74).












78.


Finally, Apple claims that the ‘delay in the preparation of the Commission’s minutes gives rise to further doubt as to their accuracy’ (75). According to Apple, there are elements in the case file that would ‘suggest that the Commission did not prepare the relevant minutes at the time of the relevant meetings or shortly after they took place’ (76). Moreover, Apple claims that the Commission registered in the file, and communicated most of the minutes of the meetings to the complainant (for the latter’s approval) only ‘several years after they took place’ (77). Apple argues therefore that, ‘even if the Case Team had in fact drafted the minutes contemporaneously […] it is implausible that Spotify’s comments could accurately reflect the discussions which took place.’ (78)













79.


I note that, in relation to these issues, Apple did not submit any requests or complaints to me, be it under Article 7 of Decision No 2011/695/EU or otherwise. However, the Hearing Officer is in charge of checking compliance of the procedures conducted by the Commission in competition matters with the rights of defence. Pursuant to Article 16(1) and Article 17(1) of Decision 2011/695/EU s/he prepares a final report on the respect for the effective exercise of procedural rights at any stage of the proceedings that will be presented to the Commission together with the draft decision. The Hearing Officer can therefore not ignore a complaint such as the one at hand, where a party alleges that the minutes provided by the Commission do not satisfy the requirements of Article 19 of Regulation No 1/2003, as interpreted by the case law. Indeed, in raising these points, Apple alleges that its rights of defence have been breached. As a result, even though it is a late stage of the proceedings, the matter has to be addressed in some detail in this Report.




4.2.1.   Case law on the recording of interviews pursuant to Article 19 of Regulation No 1/2003









80.


According to the case law of the EU Courts, ‘the Commission is required to record, in a form of its choosing, any interviews which it conducts, under Article 19 of Regulation No 1/2003, for the purpose of collecting information relating to the subject matter of an investigation.’ (79)













81.


The Court of Justice emphasised that ‘it is important to note that a distinction must be drawn on the basis of the subject matter of the interviews carried out by the Commission, and that only those seeking to collect information relating to the subject matter of a Commission investigation fall within the scope of Article 19(1) of Regulation No 1/2003 and, therefore, the obligation to record’ (80). Meetings and calls with third party information providers that fulfil this condition are to be considered ‘interviews’ within the meaning of Article 19 of Regulation No 1/2003.












82.


As regards the obligation to record, the EU Courts consistently held that it is ‘not sufficient for the Commission to make a brief summary of the subjects addressed during the interview’, but rather ‘the Commission must be in a position to provide an indication of the content of the discussions which took place during the interview, in particular the nature of the information provided during the interview on the subjects addressed’ (81).












83.


As regards the inferences to be drawn from procedural errors in relation to records of interviews in the sense of Article 19, the General Court in Qualcomm and Google Android clarified that it is necessary to establish whether, in the light of the specific factual and legal circumstances of each case, the undertaking has demonstrated adequately that ‘it would have been better able to ensure its defence had there been no procedural error’ (82). If that is not demonstrated, no infringement of the rights of defence can be established (83).












84.


Such an infringement, according to the General Court, ‘would be demonstrated where the content of undisclosed evidence may be neither determined nor determinable’, as in this case ‘the undertaking cannot be expected to bear the impossible burden of proving the content of such document’ (84).












85.


On the other hand, ‘where the content of the evidence to which access was restricted can be determined a posteriori, the undertaking cannot be relieved of the burden of proving that it did not have access to the incriminating or exculpatory evidence and of explaining the inferences to be drawn from that with regard to the exercise of its rights of defence. That is so where the undertaking can at least give an indication of the authors and nature and content of the documents which have been withheld from it.’ (85)













86.


The General Court also clarifies that, in case of undisclosed incriminating evidence, the undertaking must show that ‘the outcome of the procedure would have been different, assuming that that incriminating evidence had been disclosed’; while in the event of undisclosed exculpatory evidence, the undertaking concerned ‘must establish that it would have been able to use such evidence for its defence, in the sense that, had it been able to rely on it during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in its decision’ (86).












87.


On this basis, the ‘test’ consists in, first, an assessment of the Commission’s compliance with its duty to record any interviews which it conducted, under Article 19, for the purposes of collecting information relating to the subject matter of an investigation; and second, in case of non-compliance with that duty, a case by case assessment of whether the undertaking demonstrated adequately that it would have been better able to ensure its defence in the absence of that procedural error.




4.2.2.   Whether the minutes at hand relate to meetings qualifying as ‘interviews’ under Article 19 of Regulation No 1/2003









88.


As just recalled, the obligation to record under Article 19(1) of Regulation No 1/2003 is only applicable to interviews in which the Commission seeks to ‘collect information relating to the subject matter of a Commission investigation’ (87).












89.


It is therefore clear that not all exchanges between the Commission and external interlocutors fulfil these criteria.












90.


Specifically, in my view, exchanges on procedural or formal aspects that do not concern the substance of a case (such as, for instance, meetings that deal only with confidentiality claims) should not be considered as interviews within the meaning of Article 19(1) of Regulation No 1/2003. These exchanges are not conducted for the purpose of collecting information relating to the subject matter of the proceedings; they do not yield information that could serve as ‘indicia’ or ‘evidence’ that can inform the substantive assessment of the case. It is that latter type of information that must be recorded in proper minutes, so that it can be made accessible to the undertakings subject to competition proceedings and enable them to defend themselves fully with regard to the contents of the oral submissions collected.












91.


Similarly, I consider that calls and meetings in which the Commission is exclusively providing information to a third party, instead of collecting information on the subject matter of an investigation from that third party, should not be considered as constituting interviews falling within the meaning of Article 19 or Regulation No 1/2003 (88).












92.


Moreover, the interviews in question have to relate to the ‘subject matter of the proceedings’. According to established case law, it is ‘permissible to exclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation’ (89). This applies also with regard to meetings where the substance of the discussions is unrelated to the subject matter of the investigation (90).












93.


Against this background, I consider that certain exchanges mentioned in Apple’s complaint fall outside the scope of Article 19 of Regulation No 1/2003.












94.


This is the case, in particular, for the calls or meetings with the complainant of 12 March 2019, 4 June 2019, 19 June 2019, 3 July 2019, 15 July 2019, 8 November 2019, 19 November 2019, 16 June 2020, and 10 May 2021; and for the call with BEUC of 7 May 2021.












95.


In essence, I concur with the draft decision’s assessment of these minutes (see recitals 74-75). In my reading, it clearly emerges from the content of the minutes that in those calls/meetings the Commission discussed purely technical or procedural aspects and/or did not collect information pertaining to the subject-matter of the investigation:






—


the meeting of 12 March 2019 was requested by the complainant to ‘inform the Case Team about its next steps after the submission of the formal complaint against Apple’ which was submitted the day before. It emerges from the minutes that the complainant clarified its intention to disclose to the press the filing of the formal complaint; and that it informed the Commission that it was working on a non-confidential version to be submitted shortly;










—


the calls of 4 June and 19 June 2019 concerned technical discussions on how to make available certain data and code provided by the complainant in the data room that took place in July 2019;










—


the meeting of 3 July 2019 was requested by the Case Team so that the complainant could ‘double-check the proposed redactions and ranges in the non-confidential version of the data room report prepared by [Apple’s external advisors] prior to sharing it with Apple’;










—


the call of 15 July 2019 concerned a discussion regarding the […];










—


the calls of 8 November and 19 November 2019 discussed the draft questions for the consumer survey to be conducted by the complainant, including ‘latest changes and amendments’ proposed by the complainant and other aspects related to the survey format (for instance, the Commission stressed that ‘response options should be randomized’). In relation to these exchanges about the preparation of the Spotify Survey, it may be argued that the results of the survey under preparation were ultimately meant to be taken into account in the assessment of the case. However, the situation is not comparable to the collection of oral statements in the context of an interview, when the information sought from/provided by the interviewee in oral form is itself of a nature that can inform the assessment of the case. In that situation, the record transforms the information collected orally into an item that the party defending themselves can take cognisance of and express their views on. Exchanges of the type at hand in the present instance do not themselves contain information that could directly inform the assessment of the case in substance and are therefore not interviews within the meaning of Article 19;










—


the call of 16 June 2020 concerned technical and IT aspects in relation to a submission that the complainant was preparing in response to a request for information;










—


the call with BEUC of 7 May 2021 concerned, in essence, a possible intervention of BEUC in the case following the Commission’s adoption of the SO. It emerges from the minutes that the Case Team provided information to BEUC in relation to the case, and that BEUC indicated that it would take a decision on its intervention in the coming weeks. It emerges therefore from the minutes that the purpose of the call was for BEUC to obtain information on the proceedings, rather than for the Commission to collect information on the subject matter of the proceedings;










—


similarly, in the call with the complainant of 10 May 2021, the Commission broadly described the assessment and preliminary conclusions made in the SO, and communicated that it would transmit a non-confidential version of the SO to the complainant once Apple and the Commission agreed on such non-confidential version. There is nothing in the content of these minutes that would suggest that the Commission collected any information on the subject matter of the proceedings during the call.
















96.


In light of these considerations, I consider that these minutes do not qualify as interviews within the meaning of Article 19 of Regulation No 1/2003.




4.2.3.   Whether there is a procedural irregularity as regards the minutes of calls and meetings falling under Article 19 of Regulation No 1/2003









97.


With regard to the remaining 19 minutes, it appears, in my view, that all of the underlying meetings or calls concerned (at least in part) discussions related to the subject matter of the proceedings, and in which the Commission may have collected from the complainant information falling within the scope of the proceedings.












98.


In relation to these minutes, it is therefore necessary to analyse Apple’s claims that most minutes (i) do not indicate the duration of the underlying calls or meetings; (ii) are too brief to constitute proper records of interviews; and (iii) were belatedly recorded in the file and shared with the complainant for approval.












99.


As regards Apple’s complaints that the minutes provided do not state the precise duration of certain meetings (91), I do not consider that the lack of such indication would in itself be capable of constituting a procedural irregularity invalidating the content of the minutes (92). A fortiori, I do not consider that it would be sufficient, in itself, to establish a breach of an undertaking’s rights of defence. The simple notation of the duration of a call or meeting is incapable of providing a reliable indication of the accuracy, meaningfulness or completeness of the information provided by the Commission to a party. There is also no automatic correlation of the duration of a meeting or call and its purpose or contents.












100.


Apple asserts that, in the absence of timing, ‘it cannot be excluded that additional information relevant to Apple’s defense was discussed’ (93). However, Apple does not bring forward any additional elements to demonstrate that such additional information might have been discussed in any of the meetings under consideration.












101.


For the above reasons, I find Apple’s claims in this respect unconvincing.












102.


With regard to the second argument, according to which most minutes are too cursory to constitute accurate records of the discussions which took place (94), I note that some of the minutes seem to be sufficiently specific to reflect the ‘content of the discussions’ and in particular the ‘nature of the information provided during the interview on the subjects addressed’, (95) and it may be possible to consider that they constitute an accurate record of the interviews which took place (96). For other minutes, this conclusion seems less likely, as the documents essentially refer to an underlying document that was discussed during the meeting or call, (97) or simply provide a brief outline of the topics discussed (98).












103.


Therefore, in my view, at least some of the minutes under consideration may be considered too cursory to be capable of constituting a record of an interview in the sense prescribed by Article 19(1) of Regulation No 1/2003.












104.


Finally, Apple’s third argument, according to which the ‘Commission did not prepare the relevant minutes at the time of the relevant meetings or shortly after they took place’, giving rise to ‘further doubts as to their accuracy’ (99), needs to be considered.












105.


I recall that the interpretation of Article 19 of Regulation No 1/2003 was clarified for the first time by the Court of Justice in September 2017, with the delivery of the Intel judgment. Subsequently, the General Court in Google Android provided further clarification as regards the relevance of a timely production or approval of minutes. The General Court held that certain cursory notes of meetings, drawn up several years after the meetings took place, were to be considered ‘too late and too cursory to be capable of constituting the record of an interview in the sense prescribed by Article 19(1) of Regulation No 1/2003’; and specified that, going forward, it would be ‘useful and appropriate for the record of each interview […] to be made or approved at the time when that interview is held or shortly afterwards’ (100).












106.


In this respect, I understand from DG Competition that most of the minutes under consideration here (101) were not finalised contemporaneously, but with delay compared to when the meetings or calls took place, although on the basis of contemporaneous notes taken by DG Competition officials attending the meetings or calls. This delay may, at least for part of the minutes in question, be attributable to the fact that the underlying meetings and calls took place before the delivery of the Intel judgment on 6 September 2017.












107.


Nevertheless, similarly to the situation in Google Android, the fact remains that most of the minutes under consideration here were drawn up several years after the meeting in question and were finalised belatedly (102). The case law is not clear on whether the belated preparation of minutes is a factor in itself sufficient to conclude that the minutes cannot constitute valid records of the underlying interviews. As noted above, for instance, the General Court concluded in this sense only in relation to minutes that were both ‘too cursory’ and ‘too late’ to constitute proper records of interviews (103).












108.


That question does not need to be decided here, given that, even if the minutes under consideration were considered too cursory and/or too late to constitute proper records of interviews, it would still be necessary to determine whether Apple has adequately demonstrated that it would have been better able to ensure its defence absent these procedural errors.




4.2.4.   Whether the procedural irregularities resulted in a breach of Apple’s rights of defence









109.


As set out above, for a breach of an undertaking’s rights of defence to be established, it has to be shown that not only an interview falling within the meaning of Article 19 of Regulation No 1/2003 was not properly recorded, but also that this failure impinged on the party’s ability to defend themselves. It generally falls on the undertaking under investigation to prove that it did not have access to incriminating or exculpatory evidence and to explain the inferences to be drawn from that with regard to the exercise of its rights of defence (see paragraphs 83 to 86 above) (104).












110.


In the context of assessing such claims, the General Court has accepted that in certain instances, upon individual assessment, other documents in the file to which the undertaking concerned had access could allow the parties to ascertain what was discussed during an interview, absent appropriate minutes. This was the case, particularly, in Google Android, where the General Court considered that, in respect of most of the interviews for which Google had received only cursory notes (not capable of constituting a record of an interview), the ‘content of what was discussed during that interview’ was nonetheless ‘fully reflected in specific documents in the file, to which Google […] acknowledged having had access’ (105). The General Court therefore stated that Google was ‘able to obtain information from the Commission about the substance of what was discussed during those interviews, particularly as regards the nature of the information provided on those occasions on the topics discussed’ (106).












111.


The General Court reached the same conclusion in respect of certain notes that contained ‘no reference […] to any document in the file’, as it was ‘nevertheless possible for Google to place it in context with the information provided in relation to other two interviews conducted with the same undertaking […] on the same subject’. There two other interviews, the minutes of which were ‘approved by the undertaking concerned’, referred to ‘documents contained in the investigation file reflecting the content of what was discussed on those occasions’. The General Court therefore concluded that Google was ‘aware of the views of that undertaking in the context of the investigation’ (107).












112.


Taking account of this case law, the draft decision (recitals 77-85) considers that Apple had access to supplementary documents reflecting the content of the discussions for the meetings under consideration. Based on my own assessment of the minutes and the connected documents in the file, I concur with this conclusion. Specifically:






—


with regard to the meeting of 4 July 2013, it is apparent that the vast majority of topics discussed in that meeting were unrelated to the scope of the current proceedings. The only topic which may be considered as having a certain relation to the infringement analysed in the draft decision is the conduct consisting in Apple allegedly ‘blocking/delaying the downloading and updates of [Spotify’s] app’. In regard to that aspect, Apple was able to put the information in context and understand its content through numerous subsequent written submissions made by the complainant on the topic (see, for example, the letter of 20 January 2015 (ID 1589), or the submission of 29 June 2016 (ID 799));










—


as regards the meeting of 6 February 2015, the Commission provided Apple with the slide deck used by the complainant in the meeting (IDs 1649 and 1651), as well as a letter to the Commissioner dated 20 January 2015 (ID 1589);










—


as regards the meeting of 16 March 2015, the Commission provided Apple with the slide deck used in the meeting by the complainant (ID 1650), as well as written documents prepared by the complainant in advance (ID 1575) and as follow-up to the meeting (IDs 1647 and 1648);










—


as regards the meeting of 25 June 2015, Apple had access to the economic report presented by the complainant at the meeting (ID 1646), as well as various follow-up exchanges between the complainant and the Commission with regard to the complainant’s ‘experiment’ mentioned in the minutes (IDs 1576, 1579 to 1583, 1595);










—


similarly, the context of the discussions in the call of 16 July 2015 is discernible through the attachments to the minutes in IDs 1579 to 1583 and the documents preceding and following up on the meeting (IDs 1576 and 1595);










—


as regards the call of 10 December 2015, it is apparent that the complainant essentially restated the main complaints related to the conditions for MSS developers to access Apple’s App Store, which were already presented to the Commission in the meetings preceding and following the meeting of 10 December 2015 (see, in particular, the meetings of 16 March 2015 and 13 July 2016, and the related supporting documents). In my view, it is therefore possible for Apple to place the call ‘in context with the information provided in relation to other two interviews conducted with the same undertaking’
                               (108) on the same topics;










—


as regards the meeting of 13 July 2016, Apple received access to the written submission dated 29 June 2016 (ID 799), detailing the complainant’s arguments discussed in the meeting, as well as to the two written exchanges between Apple and the complainant mentioned in the minutes of the meeting (IDs 838 and 844);










—


as regards the meetings of 25 and 28 July 2016, the Commission provided Apple with a legal memorandum prepared by the complainant in preparation of the meetings (and as follow-up to the meeting of 13 July 2016), dated 25 July 2016 (IDs 1452 and 797), as well as to an economic paper and a newspaper article that were discussed in the meeting of 25 July 2016 (IDs 1547, 1535 and 834);










—


in relation to the meeting of 7 December 2016
                               (109) and the call of 14 December 2016, which concerned the same topic, the complainant submitted connected written observations on 11 December 2016, to which Apple had access (ID 819); (110)











—


the minutes of the calls/meetings of 6 January 2017, 16 October 2017 and 12 January 2018, while not themselves referring to supporting documents, can be placed ‘in context with the information provided in relation to other […] interviews conducted with the same undertaking’
                               (111), particularly with the meeting of 13 July 2016 and the related supporting documents, which concerned the same topic (specifically, complaints in relation to Apple allegedly blocking or delaying the updates of the Spotify app on iOS, also contained in the complainant’s written submissions of 29 June 2016); (112)











—


as regards the meetings of 18 September 2018 and 15 November 2018, the complainant again restated their main complaints related to the conditions for MSS developers to access Apple’s App Store (the details of which are clearly discernible from the content of the minutes). These complaints were already presented to the Commission in previous meetings, such as the meetings of 25 and 28 July 2016 (and related supporting documents); and were further detailed in the formal complaint submitted shortly thereafter. Therefore, I consider that, also in relation to these meetings, Apple was able to discern the information provided in the interviews by putting it ‘in context with the information provided in relation to other […] interviews conducted with the same undertaking’
                               (113).










—


as regards the call of 24 March 2020, the Commission requested the complainant to provide further clarifications on certain answers given in response to the RFI of 10 January 2020; these further clarifications were requested in writing with the RFI sent to the complainant on 23 April 2020 (ID 564, in particular in questions 1, 2 and 4), to which the latter replied on 14 May 2020 (ID 1434);










—


with regard to the call of 28 October 2020, Apple had access to the slide deck used by the complainant during the meeting (ID 1349) as well as a connected written submission (ID 881);










—


finally, in relation to the call of 30 September 2021 – the minutes of which, in any event, appear to be sufficiently detailed and were registered in the file shortly after the call – it is again possible to place the call ‘in context with the information provided in relation to other […] interviews conducted with the same undertaking’, (114) as it concerned issues repeatedly raised by the complainant in previous calls or meeting (particularly, regarding Apple allegedly delaying updates of the complainant’s app on iOS or rejecting the complainant’s promotional campaigns).
















113.


Furthermore, and in any event, Apple has not established that, absent possible procedural errors regarding the minutes in question, it would have been better able to ensure its defence.












114.


Essentially, in relation to each of the minutes that it considers to be insufficient, Apple restates a summary of the discussions that took place and claims in generic and formulaic terms, that ‘the information discussed would have enabled Apple to better ensure its defence’ (115).












115.


In relation to several of the minutes in question, it claims that ‘the lack of detailed minutes […] does not allow Apple to determine with certainty which issues or information were not discussed’, and that the absence of information related to certain topics ‘would tend to demonstrate that they only came to prominence at a very late stage of the proceedings’ (116).












116.


However, Apple does not bring forward elements to demonstrate that it did not have access to incriminating evidence (and that ‘the outcome of the procedure might have been different, assuming that that incriminating evidence had been disclosed’), nor that it did not have access to exculpatory evidence that it would have been able to invoke and that ‘could have had an influence, in any way at all, on the assessments made by the Commission in its decision’ (117).












117.


Apple’s contention reported in paragraph 115 especially does not support the conclusion that Apple was deprived of access to evidence that the Commission collected through interviews. Moreover, the inferences that Apple seeks to draw are not related to any evidence that could have been insufficiently recorded, but to the evolution of the case over time. However, it is common ground that the Commission issued two successive statements of objections in this case (the SO and RSO referred to in sections 2.2 and 3 above) and informed Apple of a reduction of the charges through the Letter of Facts (as described in section 3.4 above). Apple has extensively commented on these developments in its reply to the RSO, in its presentations at the oral hearing and in its reply to the Letter of Facts.












118.


For these reasons, I consider that any procedural errors in respect of the records of interviews raised by Apple do not, in the circumstances of the present case, result in an infringement of Apple’s rights of defence.




5.   CONCLUSION









119.


Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which Apple has been afforded the opportunity of making known its views. At this stage, what matters for this assessment is that the objections retained in the draft decision do not go further than what was preliminarily brought to Apple’s attention through the RSO, as further supported by the elements contained in the Letter of Facts. I conclude that this requirement has been complied with.












120.


In view of the above, I consider that the rights of defence of Apple in this case have been respected.






Brussels, 1 March 2024.

Dorothe DALHEIMER
               





(1)  Pursuant to Articles 1of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings, (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2)  Apple’s iPhones (based on the operating system ‘iOS’) and iPads (based on ‘iPadOS’). Hereafter, both smart mobile devices are together referred to as ‘iOS devices’ and their users as ‘iOS users’.

(3)  Draft decision, recital 2.

(4)  Draft decision, recitals 3 and 826.

(5)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, (OJ L 1, 4.1.2003, p. 1) (‘Regulation No 1/2003’).

(6)  ID 900 and ID 956.

(7)  IDs 694 to 697 and IDs 718 to 727.

(8)  DG Competition had initially aimed at commissioning a survey on this subject itself but encountered opposition from […].

(9)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, (OJ L 123, 27.4.2004, p. 18) (‘Regulation No 773/2004’).

(10)  See SO, paragraph 2.

(11)  SO, paragraph 678.

(12)  SO, paragraph 754.

(13)  Google agreed to the restricted disclosure of other RFI responses, which DG Competition made accessible to Apple’s advisors in a second data room on 22 and 23 July 2021.

(14)  RSO, footnote 1.

(15)  RSO, paragraph 4.

(16)  RSO, paragraph 506.

(17)  RSO, paragraph 507.

(18)  See RSO, paragraphs 85, 86, 180, and 518.

(19)  See RSO, paragraph 517 (and more generally, section 9.3).

(20)  See RSO, paragraph 621 (and more generally, section 9.4).

(21)  See RSO, paragraphs 569 to 613 and 730.

(22)  See RSO, paragraphs 615 to 618 and 731 to 736.

(23)  RSO, paragraph 754.

(24)  
            OJ C 210, 1.9.2006, p. 2.

(25)  RSO, paragraph 780.

(26)  RSO, paragraph 798.

(27)  RSO, paragraph 799.

(28)  Email of 21 April 2023 to Sven Völcker (Latham & Watkins LLP).

(29)  Letter of Facts, paragraph 8.

(30)  Letter of Facts, paragraphs 30 and 78.

(31)  Letter of Facts, paragraphs 31 to 72.

(32)  Letter of Facts, paragraph 79.

(33)  The Commission noted, in this respect, that: (i) ‘a significant part of the harm caused by Apple’s infringement consists of non-monetary harm to iOS users of music streaming services in the EEA’; (ii) there are ‘a considerable number of iOS subscribers of music streaming services who have suffered monetary harm’.

(34)  Point 37 of the Fining Guidelines reads: ‘Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21’.

(35)  Letter of Facts, points 82 and 83.

(36)  Judgment of 14 September 2022, Google and Alphabet v Commission (Google Android), T-604/18, ECLI:EU:T:2022:541.

(37)  Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, OJ C 308, 20.10.2011, p. 6 (hereafter, ‘Antitrust Best Practices’). Point 111 of the Antitrust Best Practices states that, ‘[if] the objections already raised against the undertakings in the Statement of Objection are only corroborated by new evidence that the Commission intends to rely on, it will bring this to the attention of the parties concerned by a simple letter (letter of facts)’.

(38)  See RSO, paragraph 504. Cf. also paragraph 24 of this report.

(39)  Cf. Judgment of 18 May 2022, Wieland Werke v Commission, T-251/19, ECLI:EU:T:2022:296, paragraph 698.

(40)  Judgment of 15 March 2006, BASF v Commission, T-15/02, ECLI:EU:T:2006:74, paragraph 48; and of 20 March 2002, Lögstör Rör v Commission, T-16/99, ECLI:EU:T:2002:72, paragraph 193, upheld on appeal by judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, C-208/02 P and C-213/02 P, ECLI:EU:C:2005:408, paragraph 428.

(41)  Judgment of 7 November 2019, Campine and Campine Recycling v Commission, T-240/17, ECLI:EU:T:2019:778, paragraph 357.

(42)  See Judgments of 25 January 2023, GEA Group v Commission, T-640/16 RENV, ECLI:EU:T:2023:18, paragraphs 210-212 and 224; and of 12 June 2014, Intel v Commission, T-286/09, ECLI:EU:T:2014:547 (annulled on different grounds), paragraph 327.

(43)  RSO reply, paragraph 57.

(44)  Reply to Letter of Facts, paragraph 60.

(45)  Apple’s presentation at the oral hearing, slide 233. The ‘significant information on market developments’ presented by Apple is contained in the RSO reply, paragraphs 61 and 62.

(46)  Apple’s presentation at the oral hearing, slides 230-231.

(47)  See, respectively, judgments of 26 January 2022, Intel v Commission, T-286/09 RENV, ECLI:EU:T:2022:19, paragraph 163; and of 22 March 2012, Slovak Telekom v Commission, Joined Cases T-458/09 and T-171/10, ECLI:EU:T:2012:145, paragraph 71. In support of its position, Apple also cites the judgment of 10 November 2021, Google and Alphabet v Commission (Google Shopping), T-612/17, ECLI:EU:T:2021:763, paragraph 440).

(48)  Apple’s submission to the European Commission of 9 March 2022, Legal Requirements for any decision the Commission may adopt, Doc. ID 2245 (hereafter, ‘Apple’s submission of 9 March 2022
            ’).

(49)  Apple’s presentation at the oral hearing, slides 247-252; and Apple’s submission of 9 March 2022, paragraph 20.

(50)  See reply to the Letter of Facts, paragraphs 68-72.

(51)  Apple’s presentation at the oral hearing, slides 244-245.

(52)  Apple’s presentation at the oral hearing, slides 244-245 (citing Questions 22, 30, 31, 33, 35 and 36 of the RFIs sent to MSS providers in April 2019. These RFIs are referenced in paragraph 28 of the RSO).

(53)  RSO reply, paragraphs 64-65.

(54)  A similar claim is made by Apple in the reply to the Letter of Facts, paragraph 7.

(55)  Paragraph 54 above. See RSO reply, paragraph 61; and Apple’s presentation at the oral hearing, slides 236-238.

(56)  Reply to the Letter of Facts, paragraph 55.

(57)  Draft decision, recital 59.

(58)  See, inter multis, judgment of 26 January 2022, Intel v Commission, T-286/09 RENV, ECLI:EU:T:2022:19, paragraph 166.

(59)  See, for example, recitals 182 (concerning Apple’s external link account entitlement program) and 187 (as regards the practical impact of the Anti-Steering Provisions) of the draft decision.

(60)  Paragraph 55 above.

(61)  Judgments of 2 February 2022, Scania and Others v Commission, T-799/17, ECLI:EU:T:2022:48, paragraph 154; and of 12 June 2014, Intel v Commission, T-286/09, ECLI:EU:T:2014:547, paragraphs 360, 362 and 371.

(62)  Judgment of 12 June 2014, Intel v Commission, T-286/09, ECLI:EU:T:2014:547, paragraphs 371-382.

(63)  Judgment of 12 June 2014, Intel v Commission, T-286/09, ECLI:EU:T:2014:547, paragraph 380.

(64)  Paragraph 56 above.

(65)  See, for instance, minutes of the meeting held with the complainant on 19 November 2019 (ID 1411), in which the ‘Commission indicated that this is and remains Spotify’s survey and that the survey should not refer to the European Commission. The Commission is simply assisting Spotify to ask questions which the Commission deems useful for the investigation’; or the minutes of the call with the complainant of 30 January 2020 (ID 1426), in which ‘the Commission told Spotify that it leaves the exact formulation of the questions to Spotify’.

(66)  See minutes of the meeting held with the complainant on 15 July 2019 (ID 1415), paragraph 2; and minutes of a call held with the complainant on 10 September 2019 (ID 1428), paragraph 2 (both cited in Apple’s presentation at the oral hearing, slides 257-258).

(67)  Minutes of a call held with the complainant on 10 September 2019 (ID 1428), paragraph 2 (emphasis added).

(68)  Minutes of the meeting held with the complainant on 15 July 2019 (ID 1415), paragraph 2 (emphasis added).

(69)  Specifically, in Annex 5 to the reply to the Letter of Facts (ID 3320).

(70)  Annex 5 to the reply to the Letter of Facts, p. 1.

(71)  Specifically, the minutes in questions relate to the meetings or calls held with the complainant on the following dates: 4 July 2013 (ID 2452); 6 February 2015 (ID 2456 and ID 2748); 16 March 2015 (ID 2451); 25 June 2015 (ID 1640); 16 July 2015 (ID 2551); 10 December 2015 (ID 1564); 13 July 2016 (ID 1639); 25 July 2016 (ID 1562); 28 July 2016 (ID 1641); 7 December 2016 (ID 1560); 14 December 2016 (ID 1563); 6 January 2017 (ID 1637); 16 October 2017 (ID 1561); 12 February 2018 (ID 1559); 18 September 2018 (ID 1419); 15 November 2018 (ID 1638); 12 March 2019 (ID 1416); 4 June 2019 (ID 1414); 19 June 2019 (ID 1420); 3 July 2019 (ID 1427); 15 July 2019 (ID 1415); 8 November 2019 (ID 1421); 19 November 2019 (ID 1411); 24 March 2020 (ID 1422); 16 June 2020 (ID 1430); 28 October 2020 (ID 1346); 10 May 2021 (ID 2535); 30 September 2021 (ID 2541); and to a call with BEUC held on 7 May 2021 (ID 2483).
The term ‘minutes’ will be used throughout the assessment for all the cited documents. However, it must be noted that, as regards the calls/meetings of 4 July 2013, 16 March 2015 and 16 July 2015, the cited documents are contemporaneous emails reporting internally the content of the calls/meetings; and, as regards the meeting of 6 February 2015, contemporaneous handwritten notes written from a DG Competition official attending the meeting.

(72)  See, in particular, judgments of 6 September 2017, Intel v Commission, C-413/14 P, EU:C:2017:632 (hereafter, ‘
            Intel
            ’); of 15 June 2022, Qualcomm v Commission, T-235/18, ECLI:EU:T:2022:358 (hereafter, ‘
            Qualcomm
            ’); of 14 September 2022, Google and Alphabet v Commission (Google Android), T-604/18, ECLI:EU:T:2022:541 (hereafter, ‘
            Google Android
            ’); of 9 March 2023, Les Mousquetaires and ITM Entreprises v Commission, C-682/20 P, ECLI:EU:C:2023:170 (hereafter, ‘
            Les Mousquetaires
            ’); of 9 March 2023, Intermarché Casino Achats v Commission, C-693/20 P, ECLI:EU:C:2023:172 (hereafter, ‘
            Intermarché Casino Achats
            ’); of 9 March 2023, Casino, Guichard-Perrachon and Achats Merchandises Casino v Commission, C-690/20 P, ECLI:EU:C:2023:171 (hereafter, ‘
            Casino
            ’); and of 25 October 2023, Bulgarian Energy Holding and Others v Commission, T-136/19, ECLI:EU:T:2023:669 (hereafter, ‘
            Bulgargaz
            ’).

(73)  Annex 5 to the reply to the Letter of Facts, paragraphs 15 and 18.

(74)  Annex 5 to the reply to the Letter of Facts, Section III. The same phrasing is essentially repeated for each of the minutes (see paragraphs 71 to 98 of Annex 5 to the Reply to the Letter of Facts).

(75)  Annex 5 to the reply to the Letter of Facts, Section IV.

(76)  Annex 5 to the reply to the Letter of Facts, paragraph 103.

(77)  Annex 5 to the reply to the Letter of Facts, paragraph 110.

(78)  Annex 5 to the reply to the Letter of Facts, paragraph 110.

(79)  
            Intel, paragraph 91; see also Qualcomm, paragraph 190, Google Android, paragraph 912; and Bulgargaz, paragraph 1157 .

(80)  
            Intermarché Casino Achats, paragraph 106; Les Mousquetaires, paragraph 90; Casino, paragraph 86.

(81)  
            Qualcomm, paragraph 190; see also Intel, paragraph 92, Google Android, paragraph 912, and Bulgargaz, paragraph 1160.

(82)  
            Qualcomm, paragraph 202, and Google Android, paragraph 935.

(83)  
            Google Android, paragraph 934.

(84)  
            Google Android, paragraph 935.

(85)  
            Google Android, paragraph 936. See, in the same sense, Intel, paragraph 96: ‘in so far as Intel argued that [the information provider] had provided exculpatory evidence to the Commission which the latter should have properly recorded and disclosed to Intel, it must be borne in mind that, as regards failure to disclose an exculpatory document, it is for the undertaking concerned to establish that the non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision’.

(86)  
            Google Android, paragraphs 937 and 938. See, in the same sense, Intel, paragraph 97.

(87)  See paragraph 81 above.

(88)  In one instance, the General Court seems to have considered two meetings with a third party, whereby ‘the purpose of those meetings was, as far as the [third party] was concerned, to obtain information from the Commission’, as falling under Article 19 of Regulation No 1/2003 (see Google Android, paragraph 954). However, the General Court also stated in the same paragraph that ‘the very purpose of those meetings and their summary […] serve to rule out any assumption that the Commission withheld evidence’, and therefore concluded that the Commission’s non-compliance with Article 19 with regard to those meetings was not capable to leading to a breach of the applicant’s rights of defence.

(89)  Judgments of 7 January 2004, Aalborg Portland and Others v Commission, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, ECLI:EU:C:2004:6, paragraph 126; and of 16 June 2011, FMC Foret v Commission, T-191/06, ECLI:EU:T:2011:277, paragraph 306. See also Bulgargaz, paragraph 1171.

(90)  In Google Android, the General Court also concluded that the procedural errors regarding recordings of two meetings were not in breach of Google’s rights of defence, given that there was a ‘lack of any obvious link between those interviews and the abuses alleged in the contested decision’ (see Google Android, paragraphs 951 to 953).

(91)  Specifically, Apple raises this argument in relation to the minutes of 4 July 2013, 6 February 2015, 16 March 2015, 16 July 2015, 10 December 2015, 28 July 2016, 7 December 2016, 14 December 2016, 6 January 2017, 16 October 2017, 12 January 2018, 18 September 2018 and 15 November 2018. In relation to four of these minutes (dated 6 February 2015, 7 December 2016, 18 September 2018 and 15 November 2018), this is the only complaint raised by Apple, who does not otherwise contest the accuracy and degree of detail of the minutes.

(92)  Apple seems to base its argument on a paragraph of the Antitrust Manual of Procedures, according to which, when the Commission holds ‘informal meetings’ or calls with external interlocutors, it will produce a brief note detailing ‘the undertaking(s) attending the meeting, (or participating in the phone call relating to substantive issues) and the time and topic(s) covered by the meeting (or such a phone call)’ (Manual of Procedures, November 2021, Chapter 12, paragraph 21). However, it must be noted that the Manual of Procedures is an internal working tool and is not a binding document: ‘The Antitrust Manual of Procedures does not contain binding instructions for staff, and the procedures set out in it may have to be adapted to the circumstances of the case at hand.’ (Manual of Procedures, page 3). The same section also explicitly states that the Manual does not create or alter any rights or obligations. In any event, the passage in the Manual of Procedures cited by Apple refers to the ‘time’ of a meeting or call, which does not necessarily include its ‘duration’.

(93)  The formulation is repeated for most of the minutes (see Annex 5 to the reply to the Letter of Facts, paragraphs 71-73, 75, 76, 79-86, 88, 89 and 91).

(94)  Apple raises this argument in relation to the minutes of 4 July 2013, 16 March 2015, 25 June 2015, 16 July 2015, 10 December 2015, 13 July 2016, 25 July 2016, 28 July 2016, 14 December 2016, 6 January 2017, 16 October 2017, 12 January 2018, 24 March 2020, 28 October 2020 and 30 September 2021.

(95)  
            Intel, paragraphs 91 and 92; Qualcomm, paragraph 190; Google Android, paragraph 912.

(96)  As a way of example, see the minutes of the calls/meetings of 16 October 2017, 12 January 2018, 18 September 2018, 15 November 2018 or 30 September 2021.

(97)  See, for examples, the minutes of the calls/meetings of 13 July 2016, 25 July 2016, 14 December 2016 or 28 October 2020.

(98)  See, for instance, the minutes of the meetings of 6 February 2015 or 16 March 2015.

(99)  Annex 5 to the reply to the Letter of Facts, Section IV.

(100)  See Google Android, paragraphs 932 and 933.

(101)  Specifically, the 19 minutes of calls and meetings falling under Article 19 of Regulation No 1/2003 as specified in paragraphs 74, 94 and 97 above. I note that Apple’s complaint as regards the late preparation of the minutes concerns all the 29 minutes referred to in paragraph 74 above, as well as a number of further minutes for which Apple does not claim that they are insufficiently detailed or informative. In relation to these latter, additional minutes, I note that Apple does not bring forward any element to demonstrate that the alleged delay in preparation of the minutes was in itself capable of breaching its rights of defence. Therefore, I consider Apple’s claims in relation to these minutes insufficiently substantiated.

(102)  Cf. Google Android, paragraph 928.

(103)  
            Google Android, paragraph 932.

(104)  A possible exception to this rule is only contemplated where the ‘content of undisclosed evidence may be neither determined nor be determinable’, as recalled above (see paragraph 84 above and case law cited).

(105)  
            Google Android, paragraph 944.

(106)  
            Google Android, paragraph 945. See also Intel, paragraph 99, where the Court of Justice considered, among the factors that led it to conclude that Intel’s rights of defence had not been breached despite the fact that the Commission had not properly recorded an interview with Dell, that ‘Intel was provided with […] a follow-up document containing Dell’s written responses to the oral questions put to [Dell] during that interview’.

(107)  
            Google Android, paragraph 949.

(108)  
            Google Android, paragraph 949.

(109)  In relation to this meeting, it also appears from the minutes that the Commission did not actually collect substantial information from the complainant. To the Commission’s question, the complainant replied that ‘it would have to discuss […] further within the company’ and ‘would [get] back to the Commission on these issues as soon as possible’. The relevant information was then provided on 11 December 2016 (in writing) and during the subsequent call of 14 December 2016.

(110)  See cover e-mail in ID 818 and the complainant’s submission of 11 December 2016 in ID 819.

(111)  
            Google Android, paragraph 949.

(112)  Furthermore, in the formal complaint submitted on March 2019, the complainant provided a detailed outline of its claims related to Apple’s allegedly obstructive conduct – see, in particular, section 3.3 of Spotify’s complaint (ID 1457).

(113)  
            Google Android, paragraph 949.

(114)  
            Google Android, paragraph 949.

(115)  See Annex 5 to the Letter of Facts, paragraphs 71 to 98.

(116)  See Annex 5 to the Letter of Facts, paragraph 68.

(117)  See Google Android, paragraphs 937 and 938.


ELI: http://data.europa.eu/eli/C/2024/3556/oj
ISSN 1977-091X (electronic edition)