The European Commission has issued a decision on 23 April 2025 (published on 6 June 2025), finding Apple non-compliant with Article 5(4) of the Digital Markets Act (DMA), concerning its App Store online intermediation services. This marks the Commission’s first published non-compliance decision under the DMA.1On the same day, a non-compliance decision was adopted regarding Meta’s “consent or pay” model (DMA.100055). The decision was published on 18 June 2025, while this blog post was being written. We will analyse the Meta decision in a separate post. Article 5(4) of the DMA mandates that “gatekeepers” like Apple must allow business users, such as app developers, to freely communicate and promote offers to end-users acquired via Apple’s core platform service and conclude contracts with them, irrespective of whether they use the Apple’s core platform services for that purpose. The decision concludes that Apple’s current business terms restrict this ability for app developers to “steer” users to offers or to complete transactions outside the App Store.
The Commission’s assessment identified that Apple’s “Original Business Terms,” “New Business Terms,” and “New Music Streaming Business Terms” all fail to comply with Article 5(4) of the DMA.2Decision, paras 56, 239, 247. Under these terms, Apple has been found to limit app developers’ capacity to communicate and promote offers and conclude contracts, often by imposing conditions or fees. For instance, the “New Business Terms” introduce a “Commission Fee” on purchases made within 7 days after a link-out from the app (17% or 10% under the Small Business Program), a 3% fee for using Apple’s in-app payment processing, and a “Core Technology Fee” (CTF) of EUR 0.50 per “annual install”3“For the first time an iOS app is installed, re-installed or updated by an end user with an Apple account in the Union in a 12-month period.” (Decision, para 35) exceeding one million. Furthermore, restrictions on “linking out”4“Apple defines “linking out” as using a link from a developer’s app that is distributed through the App Store to take end users to a website that the app developer owns, or has responsibility for, to purchase digital goods and services from the app developer.” (Decision, fn 32). include allowing only one link per Union storefront per app, prohibiting web views, and imposing a mandatory disclosure sheet every time a user links out, all of which the Commission considers an unjustified restriction.5Decision, paras 35-36.
The decision dismisses Apple’s arguments regarding procedural shortcomings and its claims that the “free of charge” requirement of Article 5(4) only applies to communication and promotion, not to the conclusion of contracts. The Commission emphasizes that steering and steered transactions must be all free of charge.6Decision, para 173. Consequently, the Commission deemed Apple’s non-compliance as serious and decided to impose a fine, requiring Apple to cease the non-compliant conduct and provide detailed explanations on how it plans to comply with the decision within 60 calendar days of notification.
Private litigation based on the Digital Markets Act (DMA) is not only possible but increasingly anticipated. A critical enabler of such litigation is the issuance of non-compliance decisions by the European Commission. When such decisions are adopted, affected companies are entitled to pursue claims in follow-on actions (relying on the established infringement). The recent decision against Apple may open the door to follow-on claims.
It is not difficult to establish that European app developers have very likely overpaid for Apple’s services and have sustained a loss of revenue (while reducing costs) related to in-app purchases. These consequences arise directly from the Commission’s latest decision and apply, at a minimum, from the date Apple was found to be non-compliant with the DMA, namely, 7 March 2024. Over a year has passed since then, and the resulting financial harm to developers is likely to be significant.
While revenue figures for Apple’s in-app purchase commissions from app developers in Europe are not publicly disclosed, a recent study commissioned by Apple7Burley, J., Prof. Fradkin, A., The Global App Store and Its Growth, June 2025. Accessible at https://www.apple.com/newsroom/pdfs/2024-Apple-Global-Ecosystem-Report-June2025.pdf. provides some insight: it is estimated that in 2024, developers in Europe generated a total of USD 20 billion (EUR 18.5 billion) in in-app purchases for digital goods and services through the App Store,8Idem, p6. Apple collects commission on digital goods and services only. including commission.9Idem, p10-11. This equates to approx. EUR 1.5 billion per month.10Estimate including commission. Since the available data and the timeline of Apple’s non-compliance do not align precisely, it is preferable to work with monthly estimates.
At first glance, one might regard the entire commission on the relevant transaction volume as the potential measure of damage. However, it is unrealistic to assume that all commissionable purchases would have shifted outside the App Store, even under full DMA compliance. Moreover, developers would have been unlikely to reduce their prices by the full commission rate (typically 30% or 15%). It is more reasonable to assume that they would have offered some modest discounts to incentivise users to switch to alternative payment channels. It is also important to account for the fact that transaction costs outside the App Store, while potentially lower, would not have been eliminated entirely.
Our high-level conservative estimates11Based on estimated figures for 2024, and assuming an average commission rate of 20-25% and that 30-50% of transactions would still take place within the App Store, developers could have avoided paying approximately EUR 154-259 million in commissions per month to Apple by steering users to alternative payment channels. If a discount in the range between 5-10% is offered to consumers to incentivize off-platform purchases, and external payment processing costs are assumed to be 5% (in line with the content of this article), the estimated additional revenue from avoiding Apple’s obligatory commissions would amount to EUR 20-133 million per month. suggest that, had Apple complied with the relevant provision of the DMA, app developers in Europe would have been able to retain additional revenue potentially exceeding EUR 100 million per month – based solely on actual purchase volumes of digital goods and services. Crucially, compliance would also likely have stimulated increased in-app purchase activity, further boosting overall developer revenue. The total unrealised revenue, stemming from both excessive transaction costs and missed sales resulting from Apple’s non-compliance, may therefore form the basis for a claim for damages, incurred as from at least March 2024 until full compliance is achieved.
