A costly comma

Jérôme Marin explains why “a simple comma is going to cost Apple billions in Europe”:

The disagreement between Apple and Brussels centers on Article 5.4. In its English version, the article states that the gatekeeper — the term used by the Commission for the seven major tech companies subject to the DMA — “shall allow business users, free of charge, to communicate and promote offers, including under different conditions […], and to conclude contracts with those end users.”

This lengthy sentence creates ambiguity: what exactly does "free of charge" apply to? Apple claims it only applies to “communicate” and “promote,” meaning the right to insert redirect links in an app. But not to “conclude contracts,” meaning making purchases. Based on that, Apple argues it can still charge commissions on those external transactions.

The European Commission interprets it differently: contract conclusion must also be free of charge. It relies on the comma before the phrase “and to conclude contracts,” turning the sentence into an “enumeration.” “That ‘free of charge’ applies to all that is being enumerated after,” it explains in its detailed decision sent to Apple as part of the €500 million fine, which was made public last week.

One way to avoid the ambiguity: place the words “free of charge” after whatever they’re meant to apply to. If the European Commission meant “free of charge” to apply only to communication and promotion:

shall allow business users to communicate and promote offers free of charge, including under different conditions […], and to conclude contracts with those end users.

And if, as is overwhelmingly likely, the European Commission meant “free of charge” to apply to communication, promotion, and contracting:

shall allow business users to communicate and promote offers, including under different conditions […], and to conclude contracts with those end users, all free of charge.

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