ACCC seeks to enter Apple and Epic showdown


Joseph Brookes
Senior Reporter

Australia’s competition regulator has made an unusual request to the Federal Court to weigh in on the ongoing legal battle between US companies Epic Games and Apple, saying the case “raises significant public policy issues” and should be decided in Australia.

In August last year, US based video game and software developer, Epic Games began legal proceedings against Apple and Google, alleging the tech giants were engaging in anticompetitive behaviour by removing its products from their app stores.

Apple and Google removed Epic’s Fortnite videogame from their app stores when the developer began offering cheaper in app purchases directly to avoid the usual app store transaction and the 30 per cent cut Apple and Google take.

Epic Games immediately filed separate lawsuits against Apple and Google for antitrust and anticompetitive behaviour in a Californian district court.

ACCC Chair Rod Sims wants issues of Australian competition law decided in Australia courts. Image: ACCC

In November Epic Games instituted proceedings against Apple in Australia in relation to the removal of the game, alleging Apple had breached Competition and Consumer Act.

Apple sought a stay of these proceedings on the grounds the matter should be settled in the US. The request was granted last month by Federal Court Justice Nye Perram. However, Justice Perram acknowledged it was a “troubling” decision and expressed concern about allowing foreign courts to deal with a case when “the most serious issues of public policy are at play”.

Epic has appealed the decision to offshore the case and an expedited hearing before the Full Federal Court has been fixed for 9 June 2021.

On Monday the ACCC applied for leave to appear at the hearing as an ‘amicus curiae’ or ‘friend of the Court’, or to intervene as a non-party. If granted, the regulator would not become a party to the case but would be allowed to make submissions on limited issues.

The regulator said “at this stage” its application is to appear in respect of the decision to grant a stay of proceedings to Apple, rather than to weigh in on issues of an alleged competition law breach by Apple.

“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.

“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.”

The American case between Apple and Epic Games began this week and is slated to run for at least three weeks in California.

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