The Competition and Markets Authority (“CMA”) has published a progress report and various working papers in relation to its investigation into mobile browsers and cloud gaming.

We previously commented on this investigation when the CMA published its issues statement in December 2022 (see here). Shortly thereafter, the investigation was suspended following an appeal by Apple challenging the CMA’s decision to make a market investigation reference. Earlier this year, the Court of Appeal concluded that the CMA’s decision was lawful, and the investigation resumed.

As the issues statement originally explained, a 12-month market study by the CMA in relation to the supply of ‘Mobile Ecosystems’ found that Apple and Google have a substantial and entrenched market power both in relation to the “supply of mobile operating systems and the distribution of native apps” and also the “supply of mobile browsers and browser engines”. The issues statement also set out that the CMA proposed to investigate certain agreements between Apple and Google in relation to browser search revenue sharing.

On the matter of browsers and browser engines, the CMA expressed concern that consumers could be losing out on some of the benefits of the world wide web, for example because development and innovation might be slower, and that existing products and services are worse quality or more expensive than they otherwise could be. It therefore proposed to focus its investigation into the following:

• whether indirect network effects (arising from the need for browsers to be compatible with websites) reinforce the positions of Google’s Blink browser engine and Apple’s WebKit browser engine and act as a barrier to expansion for competing browser engines;

• whether Apple is using its position in the supply of mobile operating systems to restrict competing browsers’ ability to develop competitive features, in particular by requiring that all browsers on iOS use Apple’s WebKit browser engine;

• whether Apple and Google are using their position in the supply of browser engines to restrict rival browsers’ access to functionality which is available in the WebKit and Blink browser engines;

• whether Apple and Google are restricting others’ in-app browsers in a way which is weakening rivalry from rival browsers and browser engines;

• whether Apple and Google are using choice architecture to reinforce the positions of their browsers and raise barriers to expansion for competing browsers; and

• whether search revenue sharing agreements between Apple and Google reduce their incentives to compete in browsers and browser engines on iOS.

The issues statement listed certain remedies that might be considered by the CMA to resolve any adverse effects on competition. These included: removing Apple’s restrictions on competing browser engines on iOS devices; requirements that make it more straightforward for users to change the default browser within their device settings; and requiring Apple and Google to provide greater access to functionality for rival browsers.

As for cloud gaming, the Market Study found that “Apple’s control over its mobile ecosystems allows it to set the ‘rules of the game’ for app developers…and that App Store policies and guidelines may have the effect of restricting the emergence of cloud gaming services on iOS devices”. It therefore proposed to focus its investigation on whether Apple’s App Store policies effectively ban cloud gaming services from its App Store and whether this weakens competition in the distribution of cloud gaming. Potential remedies in this area put forward by the CMA included requiring app store operators to review and amend their guidelines to ensure cloud gaming providers are not unduly impacted by one or more guidelines in place, and enabling prompts about cloud gaming services web apps in the Apple App Store when consumers are searching for cloud gaming apps.

Now that the investigation has resumed, and the CMA has been able to gather evidence and conduct site visits, it has published the first set of its working papers, as well as qualitative research that it has commissioned in order to understand both the experiences of web developers and also consumers’ interactions with, and understanding of, mobile browsers.

According to the progress report, the next stage in the investigation will be for the CMA to hold hearings with Apple and Google this month (summaries of which will be published in due course), after which it expects to publish its provisional decision report in October.

In the meantime, the CMA continues to welcome submissions of relevant evidence. Submissions specifically about the working papers (which can be viewed here) must be submitted by 22 July 2024.