Regulating FRAND Access to App Stores under the DMA

ABSTRACT This article develops a normative framework for interpreting the Fair, Reasonable and Non-Discriminatory (FRAND) platform-access obligation in Article 6(12) of the Digital Markets Act (DMA), with Apple’s iOS App Store as the central case study. Whereas the DMA couples contestability and fairness, EU enforcement has focused almost exclusively on contestability while avoiding the more difficult question of what constitutes a fair access fee. Yet, due to network effects and developer lock-in, effective contestability may not materialize, compelling the European Commission to confront the substantive fairness of app-store commissions. Drawing on FRAND principles in standard essential patents, EU competition law, and telecoms regulation, the article shows that none of these frameworks can be transposed directly to digital ecosystems characterized by intangible assets and reciprocal value creation. It argues instead for a principles-based approach built around four propositions: gatekeepers should not be remunerated for network-effect rents; FRAND must reflect the reciprocal value that developers generate for the ecosystem; access pricing should account for the net exchange of value between platform and developer; and fees should reflect Long-Run Average Incremental Costs. Implemented together, these principles offer a coherent method for operationalizing fairness under Article 6(12) and rebalancing value capture in digital markets.