On 23 April 2025, the European Commission concluded its investigations into Apple in relation to “anti-steering” and Meta (Facebook) in relation to “pay-or-consent” by imposing significant penalties for Digital Markets Act (DMA) non-compliance of €500m and €200m respectively. These first, and yet very significant, penalties for breach of the DMA herald a major enforcement milestone in digital platform regulation.

“Anti-steering” refers to the practice of preventing third party apps on the app stores from including links or information in their apps that ‘steer’ or ‘link-out’ consumers to purchasing subscriptions or other services from the apps outside the app stores’ own payment mechanisms.

“Pay-or-consent” refers to Meta’s practice of providing users with the ‘choice’ of either consenting to personal data being used for personalised advertising (which Meta then sells to advertisers who in turn target ads to the user who ‘consented’ to Meta using the data) or paying a monthly subscription for an ad-free service. Both types of conduct are prohibited under the DMA.

These decisions  come close to a year after the European Commission concluded its anti-trust investigation against Apple on 4 March 2024 for practically identical ‘anti-steering’ conduct where it imposed a €1.8bn fine. That investigation was the result of a complaint from Spotify in 2018 and subsequent 6-year long investigation. Apple’s appeal to the European General Court is currently pending. Less than three weeks after fining Apple for this anti-trust infringement (and the DMA coming into force on 6 March), the European Commission opened non-compliance investigations into both Apple, again, in relation to its anti-steering rules imposed in apps on its store and Meta in relation to “pay-or-consent”. Following the issuing of preliminary views of non-compliance to each company on 24 June and 1 July 2024 respectively, the Commission appears to have honoured its ambitions to try to deploy its new powers in a collaborative and proportionate (play nicely at first) approach to achieving compliance, by working closely with Apple and Meta, through a series of interactions to help them understand what it considers compliance should look like. That appears not to have worked at all with Apple, but has in part with Meta.

The Apple decision was accompanied by a “cease and desist” provision which requires Apple immediately “to remove the technical and commercial restrictions on steering and to refrain from perpetuating the non-compliant conduct in the future, which includes adopting conduct with an equivalent object or effect.”

The Commission noted in its press release that, following numerous exchanges with the Commission, Meta introduced another version of the pay or consent model in November 2024, which the Commission is currently assessing for compliance. Therefore, as the penalty that the Commission imposed on Meta only relates to conduct up to November 2024, we could still see the Commission significantly increase the penalty for this breach for the further timescale if it does not agree with Meta’s latest version.

In some interesting twists, on the same day as concluding the investigations the Commission has also decided:

• Facebook Marketplace should no longer be designated as a ‘Gatekeeper’ under the DMA as a result of arguments put forward by Meta. This means that all DMA regulatory obligations will no longer apply to Facebook Marketplace. Yet, this follows the conclusion of an anti-trust investigation against Meta by the Commission for abuse of dominance in relation to Marketplace and a €797 million for unfair trading conditions on other online classified ads service providers who advertise on Meta’s platforms and tying to its social network.
• To close its investigation into Apple’s user choice obligations/default settings and pre-installation of its apps, following a ‘constructive dialogue between the Commission and Apple’ which lead to changes being made to these. This also follows a statement last month from the Commission that it is working with Apple on guidance to help it comply with its interoperability obligations.

The Commission is clearly showing that the door is not closed to cogent, evidence-based submissions, genuine attempts at compliance and/or that the regulatory regime is not too rigid to be rolled back and flexibly applied. However, it will be interesting to see what is made (in the courts and literature) of how the Commission has been able to square the circle between a finding that Meta is “dominant” in the Marketplace abuse decision but does not pass the “Gatekeeper” test for the purposes of the DMA. Clearly some important precedent on the law and economic principles potentially made here.

These are no small penalties either, in anyone’s language, which can have and have had major impacts on share prices, even on companies of this scale. It will be interesting to see how Apple responds now it has over €2.3 billion in fines on the books in the EC in relation to the same conduct, merely 12 months apart.

Overall, the European Commission has sent a clear message to the designated Gatekeepers, platform users and the wider world that the rules are anything but toothless and the EC as their enforcer is not afraid to bite. The Commission has demonstrated that the regulations can be enforced, and outcomes achieved in time periods anti-trust litigators could only dream of. Pressure will now be on the UK CMA to follow-suit and show that it can wield the shiny new UK Digital Markets, Competition and Consumer Regulations with similar impacts, as swiftly.

If you would like to discuss this or anything else digital platforms regulation and enforcement related, please don’t hesitate to get in touch.