On 12 of March 2025 the CMA issued its (611 page) final decision report on its mobile browser and cloud gaming investigation, the culmination of a significant piece of work for it, predictably reflecting its provisional conclusions that:

1. There are a number of features in the markets for mobile browsers, browser engines and in-app browsing technology which restrict competition. While the initial concerns the CMA identified in relation to cloud gaming in its 2022 market study have been addressed by Apple (not sure that cloud gaming developers completely agree with that though).
2. Apple and Google (but mainly Apple) implement policies that stifle innovation from competitors and therefore likely to be harming consumers who are missing out on new content and products. These include:

1. • Giving Safari advance and greater access to key functionalities of iOS.
   • Requiring competing mobile browsers to use ‘WebKit’, Apple’s underlying browser engine, which limits what competitor browsers can do in competition with Safari.
   • Revenue sharing arrangements between Google and Apple is ‘so large’ that while it is less than the revenue each earn from their own browsers it is at a similar level, meaning there is almost no incentive to compete.
   • That ‘choice architecture’ that each deploy makes it hard for consumers to switch to competing browsers.

3. These policies are, therefore, having an ‘Adverse Effect on Competition’ (AEC) in a number of markets – which is the legal threshold required for the CMA to use its powers under the Enterprise Act (EA) to impose very strong remedies to address the AEC it has identified.
4. However, despite identifying appropriate remedies to these AEC, the CMA considers there are a number of ‘significant risks’ associated with these measures which is what the CMA has described as relating to:

1. • ‘specification’: that because clear requirements would need to be specified it would pose a risk to innovation which would need to be reviewed and iterated;
   • ‘circumvention, monitoring and enforcement’: that any requirements would need (i) ongoing monitoring to reflect technological change (ii) that disputes would require an ongoing dispute resolution mechanism.

5. As a consequence, in line with its provisional decision report, the CMA has decided to take the ‘do nothing’ approach basically i.e., not to use the powers it has under the EA in this investigation to impose remedies now, but instead to use its new powers under the Digital Markets Competition and Consumer Act (DMCC Act) to open Significant Market Status investigations (which, by the way it has already done) in relation to the digital activities that the CMA has already concluded that AEC exist as part of this market investigation.

This is obviously a disappointing result for competitor browsers who despite spending considerable time and effort and resources providing evidence to and engaging with the CMA, which ultimately the CMA agreed with that Apple and Google were harming competition and their commercial interests, nothing is being done as a result, despite it having the powers to do so.

This is no doubt amplified by the fact that competitor browsers must now wait until the conclusion of the CMA’s DMCC Act SMS investigations which won’t be until late September, if they are on time, and face significant uncertainty about how any remedies under the new regime will play out in reality.

Needless to say, I think we can expect significant pushback from Apple and Google on any conduct requirements or pro-competition interventions. Further head scratching comes from the CMA’s ‘chicken vs egg’ / ‘cart vs horse’ approach to (a) concluding that the DMCC Act provides the appropriate remedies to the issues it has identified here, yet (b) it must first ‘investigate’ whether Apple and Google have SMS before it can impose any remedies.

More curiosities come from the CMA’s description of the ‘significant risks’ it has identified as the reasons for not doing anything now, which don’t appear to be particularly significant or unique ‘risks’ it would face from determining the AEC in other markets where it would then need to impose remedies to address it. In fact, it is arguable that these are not actually risks to the design or impact of the remedies on competition at all but are simply matters that would impose significant resource constraints on the CMA to actively ‘monitor’ and ‘update’ them. There is then the conspicuous absence (in the 611-page report not including appendixes) of any material discussion on how the conduct requirement or pro competition intervention remedies available under the DMCC Act will provide a panacea to the issues.

The CMA’s approach is nevertheless understandable in this strange new world of ‘growth’ as primary objective and when ‘strategic steers’ to your BAU come from up on high (and indirectly across ponds).

We will be monitoring progress of the SMS investigations closely. Please do get in contact if you would like to discuss.