Compliance is a very binary thing in this matter. Either Apple complies, or they don't. It's the the EU'a job to fix the legislation, the legal system does not care about "not faithfully honoring the spirit/intent".
Which is why they will get away with it. It is why others people get away with similar behaviour in general in many jurisdictions. One legislation (which is slow to change and can be opposed by lobbying) catches up with one thing they do something new.
Legislation can be worded more generally though, which helps. Regulators and judges can be given some discretion.