Apple Tracking Privacy: German Antitrust Concerns

German Antitrust Probe Investigates Apple’s App Privacy Practices

Germany’s federal competition authority, the Bundeskartellamt (FCO), has been conducting an investigation into Apple’s app privacy framework since 2022. Preliminary findings released on Thursday suggest potential unequal treatment of third-party app developers, potentially violating competition laws.

Concerns of Self-Preferencing

The FCO believes Apple’s actions could constitute self-preferencing. Since April 2023, Apple has been subject to enhanced regulatory controls in Germany designed to limit the market power of large technology companies, prohibiting it from favoring its own services and products.

This scrutiny also aligns with the broader Pan-EU Digital Markets Act (DMA), which similarly restricts Apple from prioritizing its own offerings on iOS and other core platform services, including the App Store.

Focus on App Tracking Transparency Framework

The current investigation centers on Apple’s App Tracking Transparency framework (ATTF). This framework empowers iOS users to prevent third-party apps from tracking their activity for advertising purposes.

The core issue for the FCO lies in the disparity between how Apple handles tracking permission requests from third parties versus its own internal tracking of iOS users.

According to the FCO, “the strict requirements under the ATTF only apply to third-party app providers, not to Apple itself.” This difference may violate German competition law (Section 19a(2) of the GWB) and EU law (Article 102 TFEU).

Disparities in Consent Dialogues

The FCO highlights significant differences in the consent dialogues presented to users. The design and wording of Apple’s own app consent requests are perceived as more likely to elicit user consent compared to those used by third-party apps utilizing the ATTF.

Three Key Competition Concerns

The FCO has identified three specific aspects of the ATTF that raise competition concerns:

• Firstly, Apple’s definition of tracking focuses solely on cross-company data processing for advertising, while its own data combination practices across its ecosystem – including the App Store, Apple ID, and connected devices – are not subject to the same strict rules.
• Secondly, third-party apps may present users with up to four consecutive consent prompts under the ATTF, whereas Apple apps typically display a maximum of two.
• Finally, Apple’s prompts do not explicitly mention its own first-party tracking practices.

FCO President’s Statement

Andreas Mundt, President of the FCO, stated that Apple’s extensive digital ecosystem grants it significant access to user data relevant for advertising. He emphasized the importance of personalized advertising for app developers, some of whom directly compete with Apple’s own services.

Mundt further explained that the ATTF creates substantial obstacles for competing app publishers seeking access to user data for advertising purposes.

Apple’s Response

In a statement, Apple defended its practices, asserting that App Tracking Transparency provides users with greater control over their privacy through a clear and understandable prompt regarding tracking.

The company maintains that the prompt is consistent for all developers, including itself, and has received positive feedback from consumers and privacy advocates. Apple affirmed its commitment to transparency and user control over data.

Next Steps

Apple now has the opportunity to respond to the FCO’s preliminary findings.

Developers have frequently voiced concerns regarding perceived double standards in Apple’s treatment of its own apps and services compared to those of third parties. The European Commission is also examining Apple’s App Store operations under the DMA.

Ongoing Legal Challenges

Apple is currently appealing the FCO’s designation as a company subject to special abuse control powers. A court decision regarding this appeal is expected on March 18, 2025.

Regardless of the appeal’s outcome, the FCO’s action underscores the increasing regulatory scrutiny faced by Apple and other major tech companies in Europe as they navigate significant competition interventions.