As the EU further rolls out the Digital Marketing Act, they have designated a variety of companies and their platforms as “Gatekeepers”. You can see the complete list of Gatekeepers and some really useful explainers on what being a Gatekeeper means on the EU’s very informative website.

Now that Gatekeepers have been designated, the companies that operate those services have had the opportunity to rebut their designations.

A particularly interesting response was from Apple, who have made the case that iPadOS is an entirely separate operating system from iOS, both of which are currently designated as platforms subject to the DMA, along with the Apple App Store. Their arguments boil down to:

• iPadOS has some unique features
• iPadOS has an optional secondary input (the Apple Pencil)
• The most popular apps on iPad are different from the most popular apps on iPhone

We disagree with this claim. iPadOS is a subset of the iOS ecosystem. Indeed it was called iOS up until 2019 and very little has happened since then to significantly distinguish it. Unfortunately the EU has for now accepted the argument that iPadOS is a separate OS from iOS.

Further, according to statistics supplied by Apple, iPadOS has less than the 45 million users required to be automatically designated a Gatekeeper. The EU has determined that iPadOS has sufficient market share and power to warrant an investigation as to whether iPadOS should be considered a gatekeeper on a standalone basis. OWA had the opportunity to respond as to why we believe that iPadOS must be designated a Gatekeeper and should not be considered separate from iOS in general.

In broad strokes, OWA argued that:

• Apple’s argument about the size of the EU iPad market is in dispute. IDC, for example, shows the iPad market in Europe (the UK inclusive) to be about 43 million devices. This suggests the bar for arguing that iPadOS should be declared a gatekeeper by bridging the gap between actual and required quantitative threshold should not be high. Further Apple's calculations as to active users need to be scrutinised.

• The distinction between iOS and iPadOS is minor, the primary difference being a number of features to take advantage of the larger screen. For most of the history of the iPad, iOS was it’s operating system, and the launch schedules and differences in feature sets have not substantially diverged since the 2019 marketing change.

• The cross-device impacts of Apple’s wealthier customer base influence technology choices and investments far in excess of the install base. Discounting the network effects of the iOS/iPadOS App Store-based logic of software development and distribution is to focus on the trees, rather than the forest.

• The DMA contains clauses explictly designed to reject the attempts at artificial subdivision that Apple has put forward here. Further iPadOS is a critical part of the iOS ecosystem and it is essential to recognise the anticompetitive architecture of Apple’s influence over app stores, and the interlocking ways they do so across the Apple ecosystem. Allowing Apple to evade its DMA obligations for so significant segment of its ecosystem, will allow Apple great power to not only increaselock-in, reduce interoperability and hobble competition on iPad but also to curtail the effectiveness of the DMA with regards to Apple’s obligations on iPhone.

Apple gates proprietary API access on iOS in exactly the same ways, and through the same terms and conditions, with the same anti-competitive restraints on browser and applications choice, on iOS as it does on the lately-rebranded iPadOS. This is a sizable entrypoint to wealthy consumers across the EU, which amplifies the effects of the restrictions.

You can read both Apple’s submission to the EU here (sections 74 - 94), and, of course, you can also read OWA’s full report.