Apple seeks to block CMA’s cloud gaming market investigation

On Friday it emerged that Apple is challenging the CMA’s decision to carry out a market investigation into browsers and cloud gaming services (I discussed this decision briefly here).

The challenge is a procedural one. Apple claims (in summary) that:

• A market investigation must be proposed and consulted on within 6 months of the start date of the original market study;
• The CMA must issue its final report within 12 months of the original market study;
• The final report must state whether a market investigation reference is being made;
• Any such reference must be made at the same time the final report is published.

The CMA’s market study was launched on 15 June 2021. It initially published an interim report and a decision not to make a market investigation reference on 14 December 2021. However, the CMA's final report published on 10 June 2022 announced a consultation on whether a reference should be made, before a formal market investigation reference followed on 22 November 2022. 

Apple says this does not comply with the requirements of sections 131A and 131B of the Enterprise Act 2002, for the reasons set out above. It seeks an Order quashing the reference decision and a declaration that the market investigation launched is invalid. Apple also seeks interim relief to stay the market investigation pending judgment on its application.

Procedural challenges over time limits are relatively rare. After all, one would hope that important pieces of legislation state important deadlines clearly. However, the Enterprise Act is a notoriously complicated statute. A few years ago, acting for the Evening Standard and The Independent newspapers, we brought a somewhat similar time limits based challenge which successfully held the Secretary of State for Digital, Culture, Media and Sport to a four month deadline. The judgment describes aspects of the Enterprise Act as “labyrinthine” and “convoluted”, and we should perhaps not be surprised to see it form the basis for another challenge.

Given the nature of the Enterprise Act, it is possible that the CMA will find a way to dispute Apple’s interpretation of sections 131A and 131B. However, even if Apple’s appeal is successful, its success may be short-lived. In our case, once we were proven right that the applicable deadline had passed, there was no further relief available to the Secretary of State. However, if Apple does manage to block this market investigation, as long as the CMA still believes that it is an effective use of its resources, there is nothing to stop it from starting afresh with a new market study focussed even more squarely on the aspects of Apple’s conduct about which it has concerns.

Apple's appeal will be heard on 10 March 2023.