ACCC takes “unusual” step of seeking to assist in Epic vs Apple lawsuit

The Australian Competition and Consumer Commission (ACCC) has sought permission to appear at the hearing of Epic Games’ appeal to the Full Federal Court against an earlier decision to stay Epic’s proceedings against Apple.

The ACCC is looking to appear as an “amicus curiae” (friend of the Court) or to intervene as a non-party, so it can make submissions to the Full Court on the public policy in favour of disputes involving Australia’s competition laws being heard and determined by the Australian courts.

“The ACCC has taken the unusual step of seeking leave to appear in this appeal because the stay application raises significant public policy issues about which, as the statutory agency responsible for administering Australia’s competition law, we believe we can be of assistance to the Court,” ACCC chair Rod Sims said.

In November 2020, Epic instituted proceedings against Apple, alleging that the company had engaged in anti-competitive conduct in breach of the Competition and Consumer Act (CCA) in relation to the App Store.

Apple sought a stay of these proceedings, claiming that the commercial agreement between the two companies requires all disputes to be determined in courts in the Northern District of California in the US.

Last month, Justice Perram granted Apple’s request on the basis that he did not consider Epic had shown there were strong reasons not to grant the stay. The ACCC said he indicated he was troubled by the outcome, as it would mean Epic’s claims under Australian competition law would be determined by a foreign court.

“This is a case filed in an Australian Court involving Australian consumers and raising significant issues under Australia’s competition laws. We believe it is in the public interest for significant competition law cases such as this case to be determined by Australian courts, given the outcome of such cases can have significant implications for the broader Australian economy," added Sims.

Following Epic's appeal of the decision, an expedited hearing before the Full Federal Court is set to take place on 9 June 2021. If granted leave to appear, the ACCC would make submissions on limited issues.

In April, the ACCC released a Digital Platform Services Inquiry report analysing the dominance of the Apple and Google app stores in Australia, and included suggestions the companies could adopt. The report found that the tech giants’ app stores have “significant market power in the distribution of mobile apps in Australia”, highlighting issues around access to app marketplaces for developers, payment arrangements and the use of data.