Bundeskartellamt sends S/O to Apple regarding the App Tracking Case

Introduction

On February 13, 2025, the Bundeskartellamt (Federal Cartel Office, “FCO”) sent its statement of objections to Apple regarding the App Tracking Transparency Framework (“ATTF”), setting out competition concerns based on a preliminary legal assessment (see press release here). The FCO initiated proceedings pursuant to Section 19a ARC, and Art. The FCO initiated proceedings under Section 19a and Art. 102 TFEU in June 2022 (see here the press release) while the proceedings for designating Apple as digital gatekeeper were still ongoing. The FCO issued the designation decision only on April 3, 2023. (See blog on German developments in 2023 here) And the Federal Court of Justice will likely rule on Apple’s appeal on March 18, 2025. Advertisers or app publishers use user tracking to deliver personalized ads, or track and use data from users for other purposes. The FCO explains that tracking is especially important for app providers who offer free apps but are financed by advertising. The case was initiated by complaints from media and advertising association (see press release below

). Apple was accused of abusing its position in favor of third-party apps, and advertisers, under the guise of data protection. The current case is therefore only about the additional conditions Apple imposes to third-party apps in order to track user data: They must obtain consent from users to use their data and combine it across companies via a popup-window that appears when a third party app is launched for the first time, on top of the existing consent requirement dialog window. Apple also requires this additional consent to access the Identifier for Advertisers, which is crucial for advertisers to identify devices. Importantly, these rules do not apply to Apple’s own apps and its own user data tracking, so-called first-party tracking.

The FCO’s objectionsThe S/O raises competitive concerns in terms of possible self-preferencing and impeding other market participants, relying on three points:

The definition of app tracking is limited and only covers data processing for advertising purposes across different companies (within the antitrust meaning of undertaking) – it does apparently not apply to Apple’s similar processing across its own integrated ecosystem.

In practice, third party apps need to display up to a maximum of four consecutive consent dialogues, whereas Apple’s own apps only need to show a maximum of two. The consent dialogues also do not refer to Apple’s first-party data tracking.

The FCO finds a pattern in the different designs for the consent dialogs required for Apple’s own apps and third party apps. In the FCO’s view, users are steered to refuse consent for third-party apps to process their data, while they are encouraged to agree to Apple’s user data processing.

• Possibly relevant abusive practices under Section 19a(2)(1)ARC
• Self-preferencing
• The press release does not identify in more detail which of the practices under Section 19a(2)(1)ARC the FCO examined. It seems to rely, however, on the general clause that allows the FCO to prohibit gatekeepers from giving preference to their own offers when facilitating access to the sales and supply markets. 1 ARC. It remains to see whether the FCO also relies upon one related regulatory example i.e. that the gatekeeper presented its own offers more favorably (Section19a(2)(1) No. 1 lit. The design of the consent dialogue may qualify as “presentation” within that meaning, even though the legislative materials

(in German) primarily refer to presentation in terms of rankings (in general search engine results but also in app store searches) or the promotion of apps (p. 114). The legislative materials (in German) refer primarily to presentation in terms (of rankings) (in general search engine result but also in appstore searches (p.114).

The option to prohibit self-preferencing in Section 19a of the ARC has a wider scope than the DMA prohibition per se. Art. The FCO can, however, in principle prohibit any type of self-preferencing in any area of the gatekeeper’s activities. The concern about impeding third-parties seems to be based upon the general clause that allows the FCO to prohibit the gatekeeper taking measures to impede other undertakings’ business activities on markets of supply or sales where the gatekeepers’ activities are relevant to access to these markets. (Section 19.a(2)(1)). The burden of proof is a concern that arises from the general clause under which the FCO can prohibit the gatekeeper from taking measures that impede other undertakings in their business activities on supply or sales markets where the gatekeeper’s activities are relevant for access to these markets (Section 19a(2)(1), no. When a gatekeeper presents its own offers in a more favorable manner, it indicates that the corresponding general clause (here self-preferring) is also met. The general clauses in Section 19a(2)(1) ARC have been described as a rebuttable assumption: the FCO only needs to prove the conduct that it wants to ban meets the provisions’ elements, while the gatekeeper must prove its conduct is justified. There is a debate in Germany, whether in light of the FCO’s broad powers and due to the principle of proportionality and legal clarity, the FCO must additionally demonstrate (to some extent) that the gatekeeper’s relevant conduct needs to have at least the potential for harming competition – even though this is not explicitly mentioned in the provision’s wording.

OutlookApple can now defend itself against the FCO’s preliminary assessment, notably providing input for an objective justification of its conduct, for which it bears the burden of proof (Section 19a(2)(2) ARC). It will be interesting to see how the FCO will justify its decision if it issues one in the future. 4 lit. A ARC) before referring to the legislative materials that describe the typical risks and impacts associated with the practice at issue. The FCO also provided its preliminary assessment of Google’s conduct, which was a short part. (Google disputed the assessment in this regard.) The FCO didn’t need to do a final assessment since it had already issued a commitment (Section32b ARC). )

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