Javier Espinoza and Michael Acton, reporting for The Financial Times:

Brussels is set to charge Apple over allegedly stifling competition on its mobile app store, the first time EU regulators have used new digital rules to target a Big Tech group.

The European Commission has determined that the iPhone maker is not complying with obligations to allow app developers to “steer” users to offers outside its App Store without imposing fees on them, according to three people with close knowledge of its investigation.

The charges would be the first brought against a tech company under the Digital Markets Act, landmark legislation designed to force powerful “online gatekeepers” to open up their businesses to competition in the EU…

If found to be breaking the DMA, Apple faces daily penalties for non-compliance of up to 5 per cent of its average daily worldwide turnover, which is currently just over $1bn.

Firstly, it’s hilarious that this was leaked by Europe to The Financial Times.

Secondly, this is entirely unsurprising to anyone who understands how the European Commission, the European Union’s executive branch, functions. The reason the DMA was written was to punish “Big Tech” companies — specifically American ones — not regulate them. Moreover, the commission’s enforcement of the DMA has continuously proven to be draconian because it’s bending the rules however it wants to levy whatever punishments it wants. The DMA was just a facade for democracy, to show the world that the commission wouldn’t “regulate” the technology industry autocratically; and that regulating Apple, Google, Meta, etc., was in the interest and wishes of Europeans. The DMA, in reality, works as a free pass for the European Commission to do whatever it wants — it’s a badly written law with no real footing in legal doctrine and only exists to further strengthen the commission’s control over the market.

When the commission fully reveals why it’s fining Apple, it’ll point to a clause in the DMA that doesn’t exist, just like it did to Meta when it began its investigation of the Facebook parent. In the case of Meta, it forced the company to offer a free way for users to opt out of tracking on its services, when the DMA only required “gatekeepers” to offer a way for users to opt-out entirely, even if that way cost money. Meta’s lawyers aren’t stupid or incompetent: they knew the DMA was written only for gatekeepers to offer a tracking-free service, so they advised Meta to offer a paid, ad-free subscription. The commission didn’t like that for some reason, so it launched an investigation. That’s not a fair application of the law — it’s an application of a law that doesn’t exist.

Just as it did with Meta, the commission will probably target the Core Technology Fee, which Apple has modified so that only large companies have to pay it. But because the commission didn’t think of a per-download fee as even an option a gatekeeper could employ, it’ll erroneously target it with a law that doesn’t exist. By every measure, the Core Technology Fee — especially the amended version from May — is within the scope of the DMA and follows the laws of Europe. Apple wouldn’t risk violating the law because it knows what’s at stake here — its lawyers are competent in E.U. law and aren’t going to tell Apple to be sly about obeying. But the commission is treating Apple as if it has no interest in complying, which leads me to believe that maybe Apple shouldn’t comply.

The European Commission will fine Apple, Google, Amazon, Meta, and the rest of its long list of gatekeepers indeterminate amounts of money however it pleases because it gave itself the keys to the antitrust kingdom. These companies are dealing with a branch of government with an unchecked amount of power: it writes the law, it enforces the law, and it chooses how to enforce it. The law does not act as a check on the commission as it does in the United States, so why should Apple even comply? Apple has no chance of winning this fight against one of the most powerful regulatory bodies in the world, so it just shouldn’t. In fact, I’d say Apple should go rogue entirely and see what happens. It should increase its In-App Purchase fee to 50 percent in the European Union, tighten anti-steering rules, and subject E.U. apps to extra scrutiny in the App Review process.

What would the European Commission do in response to this blatant, unapologetic defiance of the law? Fine Apple 5 percent, which it was going to do anyway even after Apple put in all the work to comply. It’s a lose-lose situation for Apple no matter what it does because the commission has gone rogue. When your boss goes rogue and you can stand the consequences — and I’m sure Apple can; 5 percent of global daily revenue isn’t much — you should go rogue, too. Instead of applying the principle of malicious compliance, Apple should apply malicious defiance. What would Europe do, ban Apple devices from the bloc? Europeans would travel to Brussels to riot because that would be undemocratic. Would Europe pass more laws? That’s also possible, but if it fines Apple too much, Apple should just leave Europe and let the riots ensue.

I wasn’t all that supportive of the DMA when it was first passed and applied, but I never thought I’d tell Apple to break the laws of a region in which it operates. Now, that seems like the best course of action, because no matter what, it’s destined to lose.