The European Commission’s ongoing implementation of the Digital Markets Act (DMA) has produced a flood of proposals threatening the very safeguards that keep digital marketplaces and operating systems secure. For ACT members, among the most alarming are measures that would gut the access management functions major operating systems rely on to protect privacy, security, and intellectual property. Compounding the problem: opportunities to push back have been scarce, leaving critical concerns without a proper hearing.
There is, however, a meaningful win to report. On May 6, Europe’s Seventh Chamber of the General Court officially granted ACT leave to intervene in Apple’s challenge to the Commission’s proposed iOS interoperability measures. This may read as procedural housekeeping, and it is an incremental decision in the case. But it is also a formal recognition by the Court that these proposed measures could carry real consequences for the small business developers who build on these platforms.
The Court appropriately acknowledged not only ACT’s role in protecting the interests of its members, but also the potential for DMA implementation to affect SMEs’ interests in iOS practices protecting intellectual property (IP), privacy, and security. Accordingly, the decision contravenes the various assertions that because ACT opposes DMA implementation in these cases, it cannot possibly be representing the interests of small business developers.
As the Court noted, “the objects of ACT include the protection of the interests of its members.” This is an acknowledgement that ACT members’ interests are not necessarily fully aligned with the Commission’s as it implements DMA. Likewise, the Court pointed out that “owing to the fact that intellectual property rights are essential for the pursuit of the activity of the members of ACT, the questions of principle raised in the main proceedings may significantly affect the functioning of the sector concerned and the interests of ACT . . ..”
The Court also referenced ACT’s arguments that the proposed measures would harm privacy and security protections in a manner that affects ACT member interests. The Court’s approval of ACT’s application for leave to intervene in the iOS implementation matter gives developers a real opportunity to have these considerations voiced, understood, and matched against DMA proponents’ quest to reshape the mobile ecosystem to fit their needs.