The ACCC has sought leave to appear at the hearing of Epic Games, Inc’s appeal to the Full Federal Court against an earlier Court decision to stay Epic’s proceedings against Apple Inc.
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.
Epic instituted proceedings in the Federal Court of Australia against Apple in November 2020, making allegations that Apple 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 on the grounds that the commercial agreement between Apple and Epic requires all disputes between the parties to be determined in courts in the Northern District of California in the United States.
On 9 April 2021, Justice Perram granted the stay of the proceedings sought by Apple, on the basis that he did not consider Epic had shown there were strong reasons not to grant the stay. In reaching this conclusion, he indicated that he was troubled by the outcome, which would result in Epic’s claims under Australian competition law being determined by a foreign court.
Epic has appealed from that decision, and an expedited hearing before the Full Federal Court has been fixed for 9 June 2021.
“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.”
If granted leave to appear, the ACCC would not become a party to the proceedings, but would make submissions on limited issues.
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.
In November 2020 Epic instituted proceedings against Apple in Australia in relation to the removal of its game, Fortnite, from the Apple App Store. Epic alleges that Apple has breached the CCA by not allowing alternative app stores on its iOS operating system for Apple mobile devices, and by charging app developers a 30 per cent commission on in-app purchases of digital content.
Epic separately instituted proceedings against Apple in the US in August 2020 and the three week trial in the proceedings began on 3 May 2021.
The ACCC is seeking leave to appear as ‘amicus curiae’ (or ‘friend of the Court’) or alternatively leave to intervene as a non-party to the appeal. An amicus is a person who assists the court on particular points of law in a case, and who is not a party to the proceedings.
Further information about the ACCC guidelines on intervening in private proceedings is available on the ACCC website.
The ACCC recently released its second interim report as part of its inquiry into markets for the supply of digital platform services. It provides in-depth consideration of competition and consumer issues associated with the two key app marketplaces used in Australia, the Apple App Store and the Google Play Store.