| All parties involved want to flex their muscles and most here argue based on how impressed they are by the flexes displayed. Apple wants to show that they can’t be brought to their knees. Epic wants to show that they can get away with shit. The EU wants to show that they have teeth and are to be feared. In the meantime, the only organization with the actual final say, the CJEU, is off forgotten in these debates and is currently warming up to accept and adjudicate Apple’s appeal for the ~$2B fine based on art. 102 TFEU. Apple and Epic are private parties, and the EC is just an executive body. The CJEU in this is analogous to SCOTUS. The best we can do as bystanders in the meantime is asses on existing principles whose flexing actually has some power behind it. Epic’s contract with Apple was terminated prior to all this. The US courts have their blessing for this. Epic tried to get unbanned, most notably after changes in Korea, and Apple said they weren’t interested. Now Epic pulled a stunt and was stupid enough to publish the emails. Based on the time and date of those emails and their public announcement that they “got their dev account back,” we can surmise that Epic just created a new account with the information of their newly erected Swedish entity. This process is 99% automated. Afterward, they emailed Apple. Not to get permission to return but to state that they are back. That’s when the ball started rolling. To enter into a valid contract, there needs to be mutual assent. Leaving nuance by the wayside, that means that both parties needed to actually want to enter into a contract with one another. In the US, this used to be measured against a subjective standard but later shifted to an objective standard that boils down to whether a reasonable person would consider it an acceptance of an offer. In the EU, it’s still a subjective standard where intent to enter a contract is essential. All of this is to say that if push comes to shove, no court, especially not a European one, is going to consider Epic simply creating a new account when Apple has made it clear time and time again that they don’t want to do business with them, to be sufficient for forming a valid legal agreement. Without a valid legal agreement, the status quo prior to this event is leading. This being a situation in which Apple and Epic don’t have an agreement. The DMA doesn’t have provisions that would force parties to enter into an agreement and force them to do business with each other. This is because it wouldn’t be able to withstand adjudication by the CJEU but also because the EU would never want to open Pandora’s box like that. The implications of that would be quite literally beyond comprehension. So if there’s no valid contract and the EU doesn’t have the power to force one, ask yourself whose flexing is merely a flex and whose flexing is backed by the power of the CJEU? Who’s doing who a favor here? We know at least of one party that they consistently go out of their way to make a point, even when the underlying issue they use as motivation is already moot. The point being made is that their teeth are truly sharp.
So why not use those teeth in this instance and chomp into the flesh.
Are we to believe that they’ve lost their appetite for their favorite meal? Right as their latest pet project has gone into effect no less? After being embarrassed by their prey who was able to convince the courts to reach into their mouth and reveal that those teeth are not as sharp as they’ve been made out to be almost a decade ago? An embarrassment that they’re still trying to undo in court at this very moment? If someone who was so shamelessly neutered had the actual power to draw blood by chomping down into the flesh, would it be likely they’d rather growl? I don’t think so. |