ACCC Wants In On Apple Vs Epic In Australia

ACCC Wants In On Apple Vs Epic In Australia
Image: Fortnite / Epic Games

Last month the Federal Court suspended Apple and Epic Games case in Australia. The latter is currently appealing this decision and the Australian Competition & Consumer Commission (ACCC) wants to appear as a non-party.

Epic first began proceedings against Apple in Australia in November, 2020. The company is alleging that Apple has been anti-competitive and in breach of the Competition and Consumer Act (CCA).

This case was the result of Apple booting Fortnite off the App Store back in August, 2o20 after Epic purposely allowed players to purchase Fortnite’s in-game currency directly from the mobile apps on iOS and Android.

This went against Apple’s App Store guidelines, which only allows purchases directly. In most cases Apple gets a 30 per cent cut of all sales.

Google also removed Fortnite from Google Play and Epic began proceedings against them in Australia as well.

During the proceedings in Sydney in March, Apple requested a permanent stay of this case in Australia on the grounds that Epic and Apple had signed a commercial agreement that all legal proceedings would play out in the Northern District of California.

This was granted by Justice Perram to allow the court case between Apple and Epic in the U.S. play out first — but Epic is appealing the decision.

The ACCC wants to get involved in the Epic Games vs Apple case

The Australian consumer watchdog has announced that it wishes to appear at the appeal hearing in the Federal Court.

“The ACCC seeks the Court’s leave to appear as an ‘amicus curiae’ (‘friend of the Court’), or to intervene as a non-party, to make submissions to the Full Court about the public policy in favour of disputes involving Australia’s competition laws being heard and determined by Australian courts,” the ACCC said in a press release.

While Justice Perram did grant the stay, he indicated that Australian competition law being determined by a foreign court could be troubling. So it makes sense that the ACCC is now keen to get involved.

The ACCC has said, however, that if it is granted leave to appear it would only make submissions on limited issues, as opposed to becoming a party to the proceedings.

The ACCC has also said that it has not sought leave to appear in the substantive proceedings regarding Epic Games’s allegations that Apple has breached the CCA.

The ACCC’s application for leave to appear is in respect of the appeal from the stay ordered by Justice Perram. At this stage, the ACCC has not sought leave to appear in the substantive proceedings in which Epic alleges that Apple has contravened the CCA.

This essentially means that the ACCC is only looking to make submissions in regards to the appeal in order to ensure that Australian consumer issues are dealt with in an Australian court. It will not be getting involved in the overall case between Apple and Epic.

“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 a press release.

“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 expedited hearing will take place in Federal Court on June 9, 2021. In the meantime, the Apple vs Epic case in the U.S. has been a wild ride so far.