Last week, the German Federal Cartel Office (FCO) declared commitments offered by Apple regarding its Apple Tracking Transparency Framework (ATTF) binding, thereby concluding proceedings which were initiated in 2022. At first sight, this may look like another Big Tech case. But the case is also interesting for another reason: The same practice by Apple has been scrutinised not only in Germany, but also by several other national competition authorities (NCAs) across Europe – with different outcomes. This makes the case a good starting point to look more closely at how competences are allocated amongst NCAs and between NCAs and the European Commission.
What happened?
Apple’s ATTF required third-party app providers to obtain an additional Apple-defined consent prompt for certain cross-app data uses, while Apple’s own services were not subject to the same rules. This raised self-preferencing concerns by several NCAs.
In March 2025, the French Autorité de la concurrence imposed a EUR 150 million fine on Apple in relation to the ATTF, followed by the Italian AGCM with a EUR 98 million fine in December 2025. Investigations in Romania and Poland are still ongoing.
The German FCO, by contrast, did not impose a fine. Instead, it closed the case by accepting commitments: Apple committed to aligning consent prompts for its own and third-party services more closely and to simplifying the consent architecture for third-party providers. The Commitments apply only in Germany. However, as the FCO’s President noted, it may also influence the future design of the ATTF in other EU Member States. Apple has stated that it intends to roll out the ATTF changes across Europe addressing concerns raised in other countries as well. As a result, the German commitments may, in practice, have an impact beyond Germany.
Although the outcomes differ, according to the FCO’s President the German, French and Italian regulators cooperated on the matter, including with the European Commission, and exchanged views.
The starting point: Allocation of competences between NCAs and the European Commission
The legal framework is simple in theory, but less tidy in practice. A competition regulator is competent to investigate conduct where that conduct produces effects within its territory. For the European Commission to act, the conduct must also be capable of affecting trade between Member States. Where an agreement or practice – as in the Apple case – has effects in more than one territory, several NCAs may be competent to investigate the conduct in parallel, as well as the European Commission. Once the European Commission initiates proceedings, NCAs generally lose their competence to act based on the same facts. The Italian AGCM, for example, recently closed its investigation into Meta Platforms’ alleged abuse of dominance in connection with the integration of its AI assistant into WhatsApp after the European Commission initiated its own proceedings.
Cooperation between NCAs and the European Commission
Where several NCAs have parallel competence to investigate the same conduct, there is an obvious risk of divergent assessments. To avoid unnecessary parallel investigations and inconsistent outcomes, NCAs and the European Commission cooperate within the European Competition Network (ECN) (we blogged about this here). The ECN was established in 2004 as a forum for discussion and cooperation between the 27 NCAs and the European Commission in cases involving Articles 101 and 102 TFEU.
That said, coordination does not always lead to uniform outcomes. Booking.com’s best-price clauses are a prominent example. In 2015, several NCAs investigated the platform’s broad parity clauses. While the French Autorité de la concurrence, the Italian AGCM and the Swedish Konkurrensverket accepted commitments that removed the broad clauses, the German FCO took a stricter approach: It also prohibited Booking.com’s narrow best-price clauses. That approach was later upheld by the German Federal Court of Justice. (We have previously summarised the Booking-case here.)
When does the European Commission step in?
In the Apple case, some observers asked why the European Commission did not take over the matter. In general, the European Commission considers itself “particularly well placed” to act where an agreement or practice affects competition in more than three Member States. However, the mere fact that several NCAs are investigating the same conduct in parallel is not, in itself, enough for the European Commission to intervene. It may step in, for example, where:
- There is a risk of conflicting decisions in the same case;
- NCAs are unduly drawing out proceedings; or
- A decision by the European Commission is needed to develop EU competition policy.
Putting this into practice
This may sound technical, but in practice the question of which regulator – or regulators – investigate a case can matter significantly for companies, especially with respect to:
- Geographical scope: Most NCA decisions apply only within the respective regulator’s own territory. An exception may arise where commitments are voluntarily applied beyond the territory of the authority concerned, as in the Apple case. A decision by the European Commission generally applies across the EEA.
- Procedural burden: For a company, it can make a real difference whether it has to deal with one central regulator or with several NCAs in parallel.
- Fines: Because an NCA’s competence is territorially limited, any fine should generally only cover the conduct affecting that territory. That means, that companies in principle should not face multiple fines for the same conduct (within the same territory; in line with the principle of ne bis in idem). However, there are differences between jurisdictions when it comes to fines. European law, for example, does not provide for personal fines, whereas some Member States’ laws do.
Key-Takeaways
Against this background, three points are worth highlighting:
- The Apple ATTF case (once again) raises the question of whether regulating “Big tech” under national antitrust laws makes sense, as digital cases are rarely confined to one territory.
- The allocation of competence between NCAs and the European Commission is not always obvious and may depend on several factors which are not always easy to predict.
- For companies, this is not a procedural footnote. The allocation of competence may determine procedural strategy, remedies and the potential exposure to fines.
Picture by Hannah Busing via Unsplash
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