Last month, Epic announced that Apple had approved an iOS developer account for Epic Games Sweden, thus securing a path for Fortnite to return to the iOS App Store for the first time since 2020 (in Europe, at least). But Apple has now terminated that Swedish developer account in a move Epic says is a “serious violation of the DMA [that] shows Apple has no intention of allowing true competition on iOS devices.”
No competing App Store for you
Epic is referring there to the Digital Markets Act, the European regulation that has forced Apple to officially allow sideloaded apps on European iOS devices for the first time. Since Apple announced its DMA compliance plans in January, though, many third-party developers have loudly complained about the stringent terms Apple is imposing on companies that want to establish alternative App Stores on iOS devices. Epic Games was among those public complainants, with CEO Tim Sweeney publicly calling Apple’s policies “a devious new instance of Malicious Compliance” full of “hot garbage.”
Epic said Apple denied its request for a DMA consultation that could have helped streamline its plans to return to iOS. Despite this, in February, Epic signaled a willingness to jump through Apple’s hoops, using a newly approved developer account for Epic Games Sweden AB as a way to “start developing the Epic Games Store on iOS soon” ahead of a planned 2024 launch.
But Apple told Ars that Epic Games Sweden’s access to a developer account was granted through a “click through” agreement that was not evaluated by Apple management. Now that Apple management is aware of that approval, the company says it has terminated that agreement following the same logic that led the company to deny a 2021 request by Epic for reinstatement to the iOS developer program.
In a statement provided to Ars Technica, Apple cited “Epic’s egregious breach of its contractual obligations to Apple” in the past, which “led courts to determine that Apple has the right to terminate ‘any or all of Epic Games’ wholly owned subsidiaries, affiliates, and/or other entities under Epic Games’ control at any time and at Apple’s sole discretion.’ In light of Epic’s past and ongoing behavior, Apple chose to exercise that right.”
In terminating its Swedish developer account, Epic says Apple “is taking out one of the largest potential competitors to the Apple App Store. They are undermining our ability to be a viable competitor and they are showing other developers what happens when you try to compete with Apple or are critical of their unfair practices.”
Punished for speaking out?
Epic argues that Apple’s decision here was based at least in part on Epic “publicly criticiz[ing] their proposed DMA compliance plan.” To support this, Epic shared a copy of a March 2 letter from attorneys at Weil, Gotshal & Manges LLP, which states plainly that “given the past and current conduct of Epic, Apple cannot allow Epic Games Sweden AB to be part of its ecosystem.”
That letter directly cites a Sweeney tweet where he attacks “the contradictions between [Apple’s] stated principles and the intended and actual consequences of their present policies…” as well as an unspecified “litany of public attacks on Apple’s policies, compliance plan, and business model.”
“Apple is retaliating against Epic for speaking out against Apple’s unfair and illegal practices, just as they’ve done to other developers time and time again,” Epic said in its statement today.
But Sweeney also shared a February 23 email from Apple executive Phil Schiller in which Sweeney’s public criticism is cited as a potential warning sign of Epic’s bad faith.
“Your colorful criticism of our DMA compliance plan, coupled with Epic’s past practice of intentionally violating contractual provisions with which it disagrees, strongly suggest that Epic Sweden does not intend to follow the rules,” Schiller wrote. “Developers who are unable or unwilling to keep their promises can’t continue to participate in the Developer Program.”
Schiller went on to ask Sweeney for “written assurance that you are also acting in good faith,” which Sweeney provided in an email later that same day. To Apple’s lawyers, though, that short reply was an “insufficient” response that “boiled down to an unsupported ‘trust us.’ History shows, however, that Epic is verifiably untrustworthy…” What’s more, Apple argues that the new European iOS Games Store effort “is in fact a vehicle to manipulate proceedings in other jurisdictions,” such as ongoing litigation against Apple in Australia.
Given Epic’s long history of fighting Apple’s iOS policies in court (and the court of public opinion), it shouldn’t be surprising that the company says it won’t take Apple’s latest decision lying down. “The DMA was designed to eliminate the very power imbalance that Apple is proving exists today: they claim to have total control to block competing stores and apps. We will continue to fight to bring true competition and choice to iOS devices in Europe and around the world.”
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