Apple under more antitrust scrutiny in Europe

The Netherlands Authority for Consumers and Markets (ACM) has launched an investigation into whether Apple is abusing its power through the App Store, favouring its own apps over rivals.

The Dutch regulator has reported back after receiving several complaints regarding Apple’s behaviour surrounding the App Store, suggesting there might be some foul play afoot. The initial foray has led the ACM into a larger investigation to understand whether Apple, and Google for that matter, are abusing dominant positions in the app economy to drive more favourable positions for their own apps and services.

“To a large degree, app providers depend on Apple and Google for offering apps to users. In the market study, ACM has received indications from app providers, which seem to indicate that Apple abuses its position in the App Store,” said Henk Don, an ACM board member. “That is why ACM sees sufficient reason for launching a follow-up investigation, on the basis of competition law.”

The news will not be welcomed by Apple, which is also under investigation at European level following disagreement with music streaming app Spotify. Spotify is suggesting Apple deliberately disadvantages other app developers, and while the complaint lodged with the European Commission is confidential, it has created a website listed the five ways Apple does not play fair in the app economy:

  1. The 30% fee which is applied to in-app purchases
  2. Apple won’t allow developers to communicate deals and promotions directly to customers
  3. Users cannot upgrade to premium services in app
  4. Apple rejects app enhancements for unknown reasons
  5. Spotify cannot be installed on all devices in the Apple portfolio

Some of the reasons might sounds a little moany but Apple does not seem to be laying the same rules on its own apps and services. For example, Spotify cannot be played on the Homepod, but iTunes can. This point might be of interest to the Dutch authorities.

While the original complaints received by the Dutch regulator have mainly been directed towards Apple and the App Store, the ACM also notes the dominant position Google is currently in for the Android app ecosystem. This investigation will be wide enough to assess the position of both companies and their knock-on activities in the developing ecosystem.

The initial investigation, which the ACM admits has not been in-depth enough, has uncovered some worrying elements of the business, we can’t imagine it will be difficult to dig up much more dirt on the pair.

Although both the App Store and Play Store are critical gateways in connecting developers to millions of consumers, that doesn’t mean developers need to be happy about the terms. Many are becoming increasingly frustrated with conditions, notably the 30% commission, with the larger developers looking to avoid working with the pair entirely.

There are few titles which have the brand recognition to achieve success without the reach of the App Store or Play Store, but Fortnite is one. Last August, Fortnite announced it would only offer downloads through its own website as opposed to the app stores. Estimates suggest it would save the firm $50 million in commission paid to Apple and Google.

The ACM has been keen to point out it has not come to a conclusion, despite some worrying findings in the initial investigation, and it may well find no antitrust violations. Despite pleas of impartiality, Apple and Google should certainly be worried; Europe has been pretty hot on antitrust cases recently.

T-Mobile’s Tele2 acquisition is not a sign of changing attitudes from Europe – Lawyer

While some might view European Commission’s decision for T-Mobile Netherlands acquisition of Tele2’s Dutch business as a softening approach to consolidation, White & Case, one of the law firms working on the deal, warned you shouldn’t get too excited.

With the European Commission historically taking an aggressive view against any acquisition which would take a market from four to three operators, T-Mobile Netherlands acquisition of Tele2 Netherlands looked doomed to failure. However, the European Commission has always stated there is no magic number, and each case would be considered on its own merit. Despite this stance, many believed the Commission secretly held the number four as sacred.

“Looking in the rear-view mirror, you could see that the tone seemed to have gotten harsher in terms of the Commission’s approach to four to three operators,” said Mark Powell, one of White & Case’s Partners who co-led the legal team on the deal.

Unfortunately for the European Commission’s claim of impartiality on market consolidation, the evidence has been stacked against it. In Austria, Ireland and Germany, consolidation was approved though there were increasingly stricter MVNO remedies placed on the deal. In Denmark, Telenor and TeliaSonera ditched their own deal just as the European Commission was set to block it. It did have to intervene in the UK with Three and O2, while in Italy consolidation was approved under the condition spectrum was released to create a fourth player, resulting in Iliad’s entry. As time progressed, the attitude towards consolidation seemed to become more vehemently opposed.

With this in mind, the approval of the deal in the Netherlands might have come as a surprise.

“Things are very different in this case,” said Powell. “If the Commission was prepared to look at the very specific conditions, we felt we would have a favourable decision.”

However, what telcos around Europe should bear in mind is the Netherlands is a unique market. This should not be taken as changing attitudes of the European Commission, or a new era where a free-for-all consolidation battle begins. So what were the favourable conditions in the Netherlands?

Firstly, the combined market share of the newly merged business would only be 25%, keeping it in third place. Tele2’s Dutch business was a relatively minor player, only controlling around 5% market share, but is also a pureplay 4G telco. The Commission did not have to worry about 2G or 3G. Another consideration is the aggressive MVNO segment in the country, perhaps compensating for any reduction in competition.

“You could say common sense prevailed, but the fact pattern was recognised by the Commission, so they should be credited for standing by what they say when they said they would look at specific cases and make a decision accordingly,” said Powell.

Another underlying point for the successful merger was the attitude of the regulator. The Dutch regulator was generally receptive to the idea of consolidation, which was perhaps taken into consideration by the Commission. In many of the cases which have gone against consolidation, the regulator has been against the deal. This was certainly the case in the UK Three/O2 merger, where the UK watchdog was publicly hostile to consolidation, as Powell put it.

The final point which Powell believes contributed to the success was the fact the case was heard verbally in court over the course of a single day. These are scenarios which are very fact intensive, resulting in a lot of paper. Simple sending opinions and evidence back and forth creates a mountain of information, perhaps confusing and convoluting opinions. By hearing the case verbally, the court was able to consider and crystallise a decision more effectively.

“At the end of the day, this confirms that if you think you have a strong case, then there is,” said Powell.

This is what should be taken away from this deal. This is not a changing of policy from the European Commission, but conveniently proving it will consider market consolidation in the right circumstances. There isn’t another market in Europe which mirrors the conditions here, but there are markets which could be successful in the same way T-Mobile Netherlands has been here in acquiring Tele2 Netherlands.

Interestingly enough, 5G did not factor into the equation much here. The Dutch 5G auction has not taken place yet, therefore the European Commission was taking into consideration the evidence which was put in front of it. Whether market consolidation is necessary in the 5G world still remains a valid question, and this decision should not be viewed as evidence for either side.

5G will require huge investment by the telcos, significantly more than previous generations, though how to ensure these investments are made in a timely fashion is an interesting question. Should consolidation be preventing to encourage competition and the fear of another eating a telcos lunch, or should it be allowed to ensure scale of customers and confidence in ROI? The debate rages on with pros and cons on either side.

While Powell warned against believing this is a sign the European Commission is softening its approach to market consolidation, it is evidence it can stick to its word that there is no magic number to make competition work.

Netherlands falls to three MNOs as Europe approves T-Mobile/Tele2 deal

The European Commission has officially approved Deutsche Telekom’s acquisition of Tele2’s Dutch business, reducing the number of MNOs in the country from four to three.

For many through the continent this will be seen as progress, as the European Commission has previously viewed reducing the number of MNOs in a single market below four as sacrilege. With telcos across Europe looking for ways to justify the vast expenditures expected for 5G and the full-fibre diets demanding by governments in the fixed space, the prospect of market consolidation is an interesting one.

What is worth noting is this is a relatively minor acquisition. Merging DT’s Dutch business and Tele2’s only adds a relatively small increment, roughly 5%, to the newly merged business. T-Mobile NL would still remain in third position with a market share of 25%, while the European Commission has also questioned Tele2 NL’s role as an important competitive force in the Dutch market. Despite these conditions, this will certainly be viewed as progress for those who sit in the pro-consolidation camp.

“Access to affordable and good quality mobile telecom services is essential in a modern society,” said Commissioner Margrethe Vestager. “After thoroughly analysing the specific role of T-Mobile NL and the smaller Tele2 NL in the Dutch retail mobile market, our investigation found that the proposed acquisition would not significantly change the prices or quality of mobile services for Dutch consumers.”

Through the five month investigation, Vestager and her team decided the proposed merger was unlikely to lead to significant price increases due to the limited incremental impact Tele2 would have on the T-Mobile NL business, the transaction would not increase the likelihood of coordinated behaviour between mobile network operators as there is sufficient enough difference between and the business models, and finally, conditions for virtual mobile network operators due to the proposed merger would not have a serious impact on the level of competition. In short, dropping from four to three operators would not negatively impact the consumer.

Here is the question though; will this decision have any material impact on consolidation decisions elsewhere? Perhaps it might, but we suspect the European Commission will stick to the three operator rule where competition is more intense.

In listing its reasons for approving the deal, Vestager effectively said that Tele2’s Dutch business was small and irrelevant enough to the other players that it being swallowed up by one of them would not make any material impact on competition. In most other markets around Europe the fourth players have much more of a foothold in the market.

Take the UK for instance. Here, Three is the smallest of the MNOs, controlling roughly a 15% market share. On its own it can provide suitable competition to the three larger players, though if it was acquired the gain in total subscribers would have a material impact on market share. This alteration in the status quo could lead to the anti-competition doomsday scenario, or at least this is what the European Commission might believe.

Despite consolidation being a positive for the industry, scale means confidence to invest, operational efficiencies, notable procurement benefits and greater ability to generate ROI, we suspect the European Commission will stick to its four operator rule for most markets. The only exceptions will be in cases like this one, where the fourth player controls a minor market share which would have no material impact on a competitors standing in the market.

That said, this is a step forward for the stubborn European Commission.

Uber feels sharp(ish) end of Dutch and British stick

Following a data breach which exposed personal information of roughly three million European customers, Uber has been fined over £900,000 by Dutch and British authorities.

£900,000 does sound like a lot of cash, but let’s just put it into perspective for the moment. In the Netherlands, details of 174,000 customers and drivers were hacked, resulting in a €600,000 (roughly £532,000) fine, while the punishment for leaking details of 2.7 million customers and drivers in the UK was £385,000. In the US, where the exposure was admittedly significantly higher, Uber had to fork out $148 million. The numbers aren’t exactly consistent.

Uber should certainly consider itself lucky the incident occurred prior to the implementation of GDPR, though the fines simply demonstrate how important the new rules are in enforcing data protection requirements. Under today’s rules, Uber could have potentially been fined 3% of global annual turnover, and we suspect the fact it tried to cover up the incident meant it would have been held fully accountable.

“This was not only a serious failure of data security on Uber’s part, but a complete disregard for the customers and drivers whose personal information was stolen,” said Information Commissioner’s Office Director of Investigations, Steve Eckersley. “At the time, no steps were taken to inform anyone affected by the breach, or to offer help and support. That left them vulnerable.

“Paying the attackers and then keeping quiet about it afterwards was not, in our view, an appropriate response to the cyber-attack. Although there was no legal duty to report data breaches under the old legislation, Uber’s poor data protection practices and subsequent decisions and conduct were likely to have compounded the distress of those affected.”

While many found the implementation of GDPR a nightmare, this is an incident which demonstrates why new data protection rules were completely necessary. In our opinion, Uber got off lightly considering the severity of the breach and subsequent efforts to cover up the hack with ‘hush-money’.

Once the breach was discovered, Uber tried to sweep the incident under the rug. Instead of reporting the breach to authorities, customers and drivers, $100,000 was paid to the hacker, with the promise the data would be deleted, it was downloaded from a cloud-based storage system operated by Uber’s US parent company, and the hacker would keep quiet. As with all of these incidents, the truth eventually emerged. Here, it took a full year.

In both the Dutch data protection authority’s and the ICO’s investigations it was found the breach could have been avoiding if basic and appropriate data protection protocols were followed. Under GDPR, Uber is obliged to inform the relevant data protection authorities within 72 hours of discovery, which can mean fines can be avoided. If a company co-operates and is able to demonstrate it has put in place acceptable protections, authorities will not punish in the strictest of terms.

This is an aspect of GDPR which we like. Rule makers have accepted there is no such thing as 100% secure, and has created a framework which has in-built sympathy for those cases which cannot be avoided. As long as a company is proactive and honest, authorities are willing to work alongside industry to make customers and employees more secure.

This is not an example of this perfect scenario however. Uber acted completely irresponsibly and is incredibly fortunate the incident occurred during a time when data protection rules and punishments were woefully outdated. The whole incident does leave two questions remaining however…

Firstly, how many more incidents have there been which have been swept under the carpet, as we can almost guarantee there will be a few, and secondly, will the EU hold the guilty parties fully accountable to GDPR punishments? We need to know whether authorities are prepared to swing the very sharp stick GDPR hands them.

DT/Tele2 tie up could smooth path to industry consolidation

For years the telco industry has condemned the EU’s approach to competition, though green-lighting DT’s acquisition of Tele2’s Dutch business could indicate a loosening grip on the idea of four operators.

According to the European Commission, each market should ideally have four operators to ensure the consumer has choice, though this has been challenged in recent years due to market economics. In short, the telcos do not feel they are making enough money to continue network investments and challenge the OTTs in capturing the digital economy fortunes. One way to balance the equation is consolidation, but regulators have consistently resisted. This might be changed according to reports in Reuters.

DT has been attempting to swallow up Tele2’s Dutch business to create a more competitive threat to the number one and two in the market, KPN and VodafoneZiggo. However, such an acquisition would decrease the number of national telcos from four to three, sacrilege in the eyes of the Brussels bureaucrats, though this vice-like persistence with four telcos might be loosening.

The decision is due on November 30, though rumours are circulating that a decision has been made and it will be in favour of the Germans. DT’s argument has been combined company would only have a 25% market share, still a way off KPN and VodafoneZiggo, therefore it would still have to challenge on price, and it seems the European Commission is buying the stance.

For rest of the telcos around Europe, executives are bound to be eagerly awaiting the official decision. Precedent is everything when it comes to regulations, competition and acquisitions. Merging these two players will give lawyers something to point to and ammunition to fight for market consolidation.

This has been a bugbear of the European telcos for some time; scale means investment. The larger the subscription bases of the telcos, the safer they will feel in terms of splashing the cash and upgrading networks. It might of course be nothing but a rouse to make more money and realise operational efficiencies, but when you look at the size of telcos on other continents you can see the argument; European telcos simply cannot compete with those in North America or Asia.

Of course what is worth noting is this is nothing more than a report for the moment. The official decision will emerge over the next few days, though the telco industry might finally be getting some ammunition to fight back against the OTTs.

KPN launches 5G trials alongside 3.5 GHz moan

KPN has announced the launch of four new 5G trials in the Netherlands, while also giving the government a bit of a nudge to grant access to the 3.5 GHz frequency band.

Although the 3.5 GHz frequency has been marked as a priority for 5G by the European Commission, Dutch regulators have not included the band in any spectrum auctions to date, or the auction scheduled for 2019. This has been a point of frustration for the telcos, who seem to be taking it in turn to urge regulators to rethink plans. While this is seemingly KPN’s turn, VodafoneZiggo made a similar plea towards the end of 2017 which fell on deaf ears.

“Where 4G connects people, 5G will connect the whole society. It is therefore very important that we, together with customers and technology partners, investigate how 5G can optimize business processes and improve the customer experience,” said Jacob Groote, Director of Product Management Business Market at KPN.

Right now the band being used for defence and intelligence at a satellite monitoring station in the north of the Netherlands, and closed broadband networks elsewhere. Regulators have said the issue will be cleared up in time for the 2019 auction, but there has seemingly been little progress to date, much to the frustration of the telcos.

Despite the confusion, KPN has also confirmed it will begin four new 5G trials focusing on Massive MIMO in urban areas with Nokia (Amsterdam), connection of drones for precision agriculture (a farm in Drenthe), virtual reality in industry (Rotterdam Harbour) and self-driving vehicles (motorways near Helmond).

In terms of the applications in agriculture, the team will work with Wageningen University and ZTE, to test out various precision agriculture practises based on drones. The trio will also be using millimetre wave with the aim of generating speeds greater than 1 Gbps. Over in Rotterdam Harbour, network slicing is the focus of the trial. Working with Huawei, the aim is to effectively demonstrate network slicing techniques for business critical applications using virtual reality.

Spar prepares for opening of first cashless store

Retailer Spar International is making the final preparations to open the first cashless supermarket in the Netherlands at the Hogeschool Utrecht university campus tomorrow (Wednesday 4 April).

The initiative, which is known as ‘Skippen’ or ‘Skipping’ in English, will allow students who download the app to breeze in and out the store without queueing for a cash register. Customers who have downloaded the app, around 25,000 of them so far, will scan items into their shopping cart using QR codes before paying at the end with Tikkie, ABN AMRO’s online payment solution.

“Skippen is a shop-driven concept and comes from the desire to make customers even happier,” said Kyra van Elswijk, Smart Clients Manager at Spar. “Because the customer does not have to wait at the counter, the customer actually has a longer lunch break. The power of Skippen is mainly in the customer’s trust, something that has always been an important part of the formula thanks to the self-checkout cash registers.”

Spar University is a sub-brand of the Spar group with retail sites on university campus’. While providing a more tailored shopping experience for students, we can imagine the Pot Noodles supply is endless, this is also the site of trials and initial introductions of new projects. This is the first cashless store, but Spar University also got the ball rolling on the first 100% self-checkout site as well.

Launched in 2013, the 100% self-checkout store featured no cashiers. The cashless element, with customers entirely reliant on the app and digital payments, is the second phase in Spar’s development plan to make shopping simple, smart and fast.

The app itself was developed by Social Brothers, though Countr was brought in for the Point-of-Sale software, and Mood Media focused on the audio-visual customer experience. As mentioned before, ABN AMRO provided the payment solution.

While this is certainly an interesting concept, Spar is also heading into the world of personalisation and big data. By using the app Spar will be able to collect information on each specific user and therefore understand purchasing behaviour. Not only will this help the team make sure the right products are in the shop, but Spar has also said it wants to make personalised offers to shoppers based on previous behaviour. These rewards can be collected through the app.

There might be some in the world who are getting increasingly paranoid about handing over personal information, even more so when the last few weeks are taken into account, but students are much more accepting of new technologies. These are digital natives where the exchange of information for value is a normalized idea, and a demographic which will be much more receptive to free stuff. Not a bad place to tweak the bugs.

Rare European telco consolidation as T-Mobile Netherlands moves to acquire Tele2

T-Mobile Netherlands is bidding €190 million plus a quarter of the combined company to buy rival Tele2.

While this is an interesting piece of potential disruption in the Dutch market, the real intrigue lies in the position this puts European competition authorities in. According to Ovum’s WCIS service KPN is the dominant Dutch operator with a 55% subscriber share. Vodafone is second with 22%, then comes T-Mobile with 17% and Tele2 with 5%.

Combining the latter two would still only achieve parity with Vodafone and be miles short of KPN, so it’s hard to see what possible objections there can be to this deal on competition grounds. But Eurocrats have consistently shown themselves to be almost religiously inclined towards maintaining the number of operator players in a given market at four, so they’re left with a bit of a dilemma over this one.

As you would expect T-Mobile is acutely aware of this regulatory dogma and is wasting no time in telling anyone who will listen how uncompetitive the Dutch market is and thus, by extension, what a great idea this acquisition is.

“I would like to congratulate all our customers and all others who are looking for attractive alternatives,” said Søren Abildgaard, CEO of T-Mobile. “This combination means justice for customers. This duo has been getting away with this game for far too long and there was only one victim, namely the customer! No more. No longer. We will be able to compete against the duopoly much more efficiently and give all Dutch customers a fair choice. We are never going to stop breaking down barriers and will continue to challenge this industry in the years to come.”

Abildgaard seems to have been talking to his colleague in the US – John Legere – who has turned bombastic disruption into an art form over in the US, and he’s not the only one. “We’ve started our journey to disrupt the Dutch market and we will be creating a viable and strong attacker of the duopoly KPN and VodafoneZiggo.” said Thorsten Langheim, Head of the Group Development segment of Deutsche Telekom overseeing T-Mobile NL.

“This is a fantastic opportunity to speed up development of the Dutch telco market and to spur effective competition to the benefit of the Dutch population,” said Allison Kirkby, President and CEO of Tele2 AB. “I see this as a logical next step to become part of a stronger number three player that will benefit our customers, our shareholders and our employees.”

T-Mobile is hoping this deal will close on the second half of next year, but that seems optimistic on two counts. The first is the strong possibility that Europe will just say ‘four good, three bad’ and then stick it’s fingers in its ears. The second is that it will take a year just to start mulling the whole thing over because massive, publicly-funded lunches don’t eat themselves. Let’s see.