I can say with high confidence they did think of the possibility but decided against closing the loophole because they didn’t want to be too overbearing with the regulation. You can see that process in action with the GDPR and cookie banners. Initially the regulation allowed for some freedom on the end of the website but after observation the EU determined that companies are happy to keep pushing the boundaries and have decided to tighten the wording of the cookie banner regulation.
Apple is likely shooting themselves in the foot right now because this behaviour will just result in the EU taking away what loopholes they left the companies to use in moderation.
They saw how unpopular that was with unity and decided it’s a great wrench to throw at the EU while still complying with the letter of the law.
Is that enough though?
I’m not sure about the EU level but in several states not only the letter of the law but also the intent of the law matters.
Edit: To clarify, I wonder whether it is enough for companies to follow the letter of the law while flagrantly ignoring the intent of the law.
I’m sure they can tighten it if it doesn’t seem to work out.
I’m not sure they would even need to tighten it.
See edit.
I can say with high confidence they did think of the possibility but decided against closing the loophole because they didn’t want to be too overbearing with the regulation. You can see that process in action with the GDPR and cookie banners. Initially the regulation allowed for some freedom on the end of the website but after observation the EU determined that companies are happy to keep pushing the boundaries and have decided to tighten the wording of the cookie banner regulation.
Apple is likely shooting themselves in the foot right now because this behaviour will just result in the EU taking away what loopholes they left the companies to use in moderation.
Amending the law to fix these issues would take another decade though, so maybe they’re just trying to prolong the process.