Much has been made of the potential impact of Brexit on the UK’s status as a primary centre for commercial dispute resolution. This debate is particularly relevant in the context of competition law centric disputes, especially since the UK’s advantages as a jurisdiction for would be litigants are strengthened by the opportunity to have disputes heard by a specialist tribunal – the Competition Appeal Tribunal (CAT).
The recent decision by Epic games to bring similar claims at the CAT against Apple and Google for breaching the competition law rules in the way they manage and operate their stores for the download and use of apps, suggests that the UK’s pre-eminence in this area will likely continue unabated.
Epic’s claims centre on its decision, in August 2020, to allow players of the hugely popular Fortnite game to pay Epic directly for in-app purchases, rather than via Apple and Google’s payment processor, as required of app developer using their stores. Apple was the first to retaliate, removing the Fortnite app from the App Store and terminating Epic’s developer account.
Apple’s actions led to a very public battle between the parties and, unsurprisingly, US court proceedings, launched by Epic. At its heart, the dispute centres on Apple’s right (or otherwise) to claim a cut of all purchases made via Apps that area accessed on the App Store and whether the 30% rate charged by Apple is lawful or not. On the same day as it launched proceedings against Apple, Epic launched parallel proceedings against Google in respect of its similar practices via the Google Play app store for Android.
The UK claims are a means for Epic to widen the scope of the dispute and seek a ruling covering European markets (the CAT being able to opine on whether or not EU as well as UK competition law is being infringed). They come at a time of significant EU regulatory scrutiny of the activities of both Apple and Google and the European Commission having opened a formal investigation to consider whether Apple’s rules for developers using the App Store violate competition law.
Epic’s latest salvo demonstrates also that those wishing to hold their trading partners to account by redressing any commercial imbalance between them should consider their ability to use the competition law disputes route to do so.