CADE issues interim measure against Apple

On 25 November 2024, the Office of the Superintendent General at CADE (SG) launched an administrative proceeding against Apple to investigate alleged abuse of dominant position related to the creation of artificial barriers for the entry and growth of competitors, as well as tying sale. Due to the specificities of the case at hand, CADE also issued an interim measure.

The anticompetitive conducts include the imposition of clauses in Apple Terms & Conditions to regulate the usage of its operational system in mobile devices, the iOS. On this regard, CADE investigates if these practices have the potential to foreclose the Brazilian market for distribution of mobile apps, digital goods and services, and systems for processing transactions in apps of the iOS operational system.

After the administrative proceeding is launched, the defendants are to be notified to file answers. Following the discovery phase, the Office of the Superintendent General will either find the defendants guilty or dismiss the case before submitting it to the Tribunal of CADE for a final decision.

Taking the analysis into consideration, CADE adopted the interim measure to allow developers and iOS users to choose the distribution channels and payment processing systems in applications freely. Apple has 20 days to implement the mechanisms and tools necessary to put the interim measure into effect. In case of non-compliance, the company will pay a daily fine of BRL 250 thousand.

The initiative aims to protect society’s well being, the public interest, and free competition, as provided by Law 12529/2011. Thus, CADE may issue an interim measure whenever there is any evidence or a reasonable concern that the respondent's actions, directly or indirectly, have caused, or might cause, harm to the market that is irreparable, difficult to repair, or that renders the final result of the proceeding ineffective.

Abuse of dominant position practices involving digital ecosystems of mobile digital devices are the target of several international investigations, so this issue deserves the attention of foreign antitrust authorities, and CADE is attentive to it.

It is worth noting that while managing the usage of an operational system is not illegal, the concern lies on the restrictions created by a set of agreement clauses imposed by the company on the competitors, which can harm competition.