Bundeskartellamt has concerns about the current form of Apple’s App Tracking Transparency Framework (ATTF)

The Bundeskartellamt has today sent Apple Inc., Cupertino, USA, and Apple GmbH, Munich, its preliminary legal assessment of Apple’s “App Tracking Transparency Framework” (ATTF). Since the implementation of the ATTF in April 2021, providers offering apps in the iOS App Store have had to obtain additional consent from users before gaining access to certain data for advertising purposes. However, the strict requirements under the ATTF only apply to third-party app providers, not to Apple itself. In the Bundeskartellamt’s preliminary view, this may be prohibited under the special abuse control provisions for large digital companies (Section 19a(2) of the German Competition Act (GWB)) and under the general abuse control provisions of Article 102 TFEU. Apple now has the opportunity to comment on the allegations.

Andreas Mundt, President of the Bundeskartellamt: “Apple operates a comprehensive digital ecosystem, which, through its many services and connected devices, the App Store and Apple ID, provides Apple with extensive access to user data relevant for advertising. Apple uses some of these data to offer advertising space for personalised advertising in its App Store, generating significant revenues. Personalised advertising is also of great commercial significance for other companies wishing to offer free apps, some of which compete with Apple’s own services, in the App Store. This applies in particular to the many providers which – in contrast to Apple, for example – do not themselves have a wealth of broad and deep user data to draw on. However, the ATTF makes it far more difficult for competing app publishers to access the user data relevant for advertising.

For us, it is key that users can make a free and informed decision about whether or not their data may be used for personalised advertising at all. The question at hand is whether Apple is allowed to apply stricter criteria to other providers than to itself when it comes to requesting such user consent. In our preliminary view, doing so may amount to unequal treatment and self-preferencing, which are prohibited under competition law.”

In April 2023 the Bundeskartellamt issued a decision finding that Apple is of paramount significance for competition across markets and therefore subject to extended abuse control under Section 19a GWB (see press release of 5 April 2023). Apple has lodged an appeal against this decision to the Federal Court of Justice, which is still pending.

With the iOS 14.5, iPadOS 14.5 and tvOS 14.5 updates issued in April 2021, Apple implemented the ATTF for Apple devices like the iPhone. The ATTF establishes certain preconditions for user tracking by third-party apps across different services and companies (known as third-party tracking). Advertisers or app publishers can use tracking to display personalised advertisements or to track and use user data for other purposes. These options are particularly relevant to third-party app providers if their business models rely on apps which are available free of charge but financed through advertising.

Under the applicable data protection rules, app publishers must obtain user consent before accessing user data. For third-party companies, the ATTF now also makes data access conditional on the users’ consent to the use and combination of their data across companies, which is requested in a dialogue popping up when a non-Apple app is started for the first time, in addition to the consent required in the already existing dialogues. Access to the Identifier for Advertisers (IDFA), which is made available by Apple to identify devices and is important to the advertising industry, is also conditional on this consent. However, these rules do not affect Apple when using and combining user data across services in its own ecosystem (first-party tracking). While users can also restrict Apple from using their data for personalised advertising, Apple is not subject to the additional ATTF rules.

The consent dialogues for Apple’s own apps and for third-party apps differ substantially. The current design, in particular the wording, of the dialogue for Apple’s own apps makes it more likely that users will consent than that of the ATTF dialogue for third-party apps.

In the Bundeskartellamt’s preliminary view, the ATTF raises competition concerns with regard to three aspects, which may contribute to Apple favouring its own apps over third-party apps and to impeding the relevant market participants: 

- First, Apple’s ATTF defines “tracking” in a way that only covers data processing for advertising purposes across companies. However, based on the findings so far, the strict ATTF rules do not cover Apple’s own practice of combining user data across its ecosystem – from its App Store, Apple ID and connected devices – and using them for advertising purposes.

- Second, third-party apps may show users up to four consecutive consent dialogues under the ATTF, while Apple’s own apps show a maximum of two. In addition, these do not refer to Apple’s own processing of user data across services (known as first-party tracking) as such.

- Third, in the Bundeskartellamt’s preliminary view, the consent dialogues provided by Apple are currently designed in a way that encourages users to allow Apple to process their data. The consent dialogues for third-party apps, on the other hand, steer users towards refusing third-party data processing.

Companies affected by this do not only include app publishers or content providers (such as media publishers) offering their own apps but also advertisers or technical service providers in the advertising industry.

In its ATTF proceeding, the Bundeskartellamt is examining Apple’s conduct based on its previous decision finding Apple to be of paramount significance for competition across markets within the meaning of Section 19a(1) GWB. That decision was issued on 3 April 2023; Apple’s appeal was heard at the Federal Court of Justice on
28 January 2025. The court’s decision is to be delivered on 18 March 2025. The Bundeskartellamt is conducting the proceeding in close cooperation with the European Commission and other national competition agencies which are currently examining the ATTF in their own national competition proceedings.