A foundation representing Dutch app developers, Stichting Right to Consumer Justice,[1] and a non-profit organisation defending the interests of mobile app users, Stichting App Stores Claims,[2] filed class actions in the Netherlands against Apple Inc. and its subsidiary Apple Ireland in February 2021 and July 2022, respectively. The actions allege the abuse of a dominant position contrary to Article 102 TFEU.
The plaintiffs accuse Apple primarily that:
- iOS is the only operating system permitted on Apple devices;
- Applications intended for use on iOS devices can only be downloaded from Apple’s App Store;
- All relevant payments must be processed exclusively via Apple’s payment system;
- Apple charges a 30% commission on all such transactions.
The above-mentioned conduct is allegedly leading to excessive app prices, from which Apple benefits through disproportionately high profit margins. This practice is ultimately claimed to infringe on consumer rights. According to the class actions, the estimated consumer damage allegedly amounts to between EUR 236 million and EUR 637 million (i.e., up to approximately CZK 16 billion).
The CJEU is now addressing a preliminary rulingregarding the local jurisdiction of the Dutch courts under Article 7(2) of the Brussels I bis Regulation. Specifically, the following issues are under review:[3]
1) Where is the place where the damage occurred in the case of the alleged abuse of a dominant position through an online platform accessible from the territory of a Member State?
- Is it relevant in this regard that the online platform is in principle accessible worldwide?
- Is it relevant in this regard that the claim was brought as a class action aimed at protecting the class interests of consumers residing throughout the territory of a Member State?
- If several courts have jurisdiction, can national rules on referral to a single court be applied?
2) Can the place of the damage (i.e., where the damage occurred) be considered to be the consumer’s residence in cases where the damage arose due to purchases of applications and in-app digital products accessible throughout the territory of a Member State, and where the place of purchase cannot be precisely determined?
- Is it relevant in this regard that the claim was brought as a class action aimed at protecting the class interests of consumers residing throughout the territory of a Member State?
- If several courts have jurisdiction, can national rules on referral to a single court be applied?
In its judgment of 5 July 2018 in Case C‑27/17, the Amsterdam court preliminarily concluded that Dutch courts had jurisdiction, since Apple’s alleged anti-competitive conduct was carried out in the territory of the Netherlands.[4]
However, determining the specific local court having territorial jurisdiction remains questionable. As a matter of fact, individual consumers reside throughout the territory of the Netherlands, and the relevant online platform was accessible from that entire territory. In line with existing CJEU case law (cf. Case C‑30/20), Article 7(2) of Brussels I bis provides determines not only international jurisdiction but also the territorial jurisdiction within a Member State.[5] This provision excludes rules for the conferral of national territorial jurisdiction that diverge from the criteria established by that provision.[6]
Opinion of the Advocate General delivered on 27 March 2025
On 27 March 2025, Advocate General Manuela Campos Sánchez-Bordona delivered his Opinion in the case, focusing in his legal analysis on the interpretation of Article 7(2) of the Brussels I bis Regulation and the determination of territorial jurisdiction in cases of the alleged damage caused through digital distribution platforms.
1) The place where the harmful event occurred should be considered the user’s place of residence or registered office
The Advocate General recalls that Article 7(2) of Brussels I bis covers both (i) the place where the damage occurred or (ii) the place of the event giving rise to it. If there several competent courts, it is for the plaintiff to choose among them. However, Article 7(2) is not designed to favour the injured party.
The purpose of Article 7(2) is to designate a court with a particularly close connection to the dispute, based on geographical proximity that facilitates the gathering of evidence of the unlawful conduct, and such a court must also be objectively foreseeable for the alleged tortfeasor at the time of the wrongful act.
The Advocate General rejects the plaintiffs’ position that any court in the Netherlands could have territorial jurisdiction. Such a broad interpretation of Article 7(2) of the Brussels I bis Regulation is inconsistent with its purpose, which is to identify a single court having both international and territorial jurisdiction as the general rule.
The Advocate General, on the other hand, proposes the application of a "location fiction", which—in cases where it is impossible to determine the exact place of the harmful event—allows for the determination of a fictional location. This location is then used as the reference point for determining territorial jurisdiction.
In the context of the present case, if a user is directed to the Dutch App Store based on his/her Apple ID, all purchases are considered to be made at the user’s place of residence or registered office in the Netherlands—regardless of his/her actual location within the country at the time of purchase.
2) The place where the damage occurred is the user's place of residence or registered office
The alleged damage suffered by users consists of a surcharge paid for downloading applications from the App Store. The app price is increased because developers pass on to users the fee imposed on them by Apple.
In this context, the Advocate General referred to earlier CJEU judgments concerning unlawful surcharges, according to which the place where the damage occurred is considered to be either the place where the goods with the surcharge were acquired[7] or the place of residence[8] of the injured party.
Accordingly, in line with this case law, the place where the damage occurred should be considered the user’s residence or registered office.
To support this position, the Advocate General refers to Apple’s App Store licensing agreements, which contain jurisdiction clauses. These clauses stipulate that for users residing in an EU Member State, the applicable law and forum shall be that of the Member State of their habitual residence. Therefore, the user’s place of residence is also objectively foreseeable for Apple.
3) Limiting the effects of class actions
The Advocate General emphasized that the interpretation of Article 7(2) of Brussels I bis cannot be influenced by the fact that the claim was brought as a class action.
Jurisdiction of the courts at the place of the alleged harmful event or where the damage occurred is derived from the unlawful conduct or the reduction of the claimant’s assets, which remains the same regardless of who procedurally asserts the claim. Article 7(2) of the Brussels I bis Regulation is based on a high degree of predictability, which cannot vary depending on the identity of the plaintiff, the interested party, or even the legal representative.
A class action may thus be brought before a single court only if the harmful event:
a) is unique and occurred or is likely to occur within the territorial jurisdiction of that court;
or
b) all relevant events (i.e., those affecting the ultimate interest holders) occurred within the same judicial district.
The Advocate General acknowledges that this interpretation substantially limits the usefulness of class actions where the legislature has not designated a specific competent court having sole territorial and subject matter jurisdiction.
At the same time, he acknowledges that the purpose of class actions is not to link the place of dispute to a specific court, but rather to address the similarity of the interests being defended. However, given the interpretation of Article 7(2) of the Brussels I bis Regulation by the CJEU, the Advocate General concludes that the application of this article cannot be affected by the filing of a claim as a class action.
If a qualified entity seeks to bring a cross-border class action for damages before a single court, it can make use of general territorial jurisdiction and bring the action in the place where the defendant is domiciled.
- [1] – https://righttoconsumerjustice.nl/en.
- [2] – https://appstoresclaims.nl.
- [3] – Case C-34/24, Stichting Right to Consumer Justice and Stichting App Stores Claims: Request for a Preliminary Ruling Submitted by the Rechtbank Amsterdam (Netherlands) on 18 January 2024 – Stichting Right to Consumer Justice and Stichting App Stores Claims v. Apple Distribution International Ltd and Apple Inc. (OJ C, C/2024/2727, 29.04.2024, ELI: http://data.europa.eu/eli/C/2024/2727/oj.
- [4] – Judgment of 5 July 2018, Case C-27/17: The Court finds that, where the market affected by the anticompetitive conduct is in the Member State on whose territory the alleged damage is purported to have occurred, that Member State must be regarded as the place where the damage occurred for the purposes of applying Article 5(3) of Regulation No 44/2001. That approach, based on the alignment of those two elements, is consistent with the objectives of proximity and predictability of the rules governing jurisdiction, since, first, the courts of the Member State in which the affected market is located are best placed to assess such actions for damages and, secondly, an economic operator engaging in anticompetitive conduct can reasonably expect to be sued in the courts for the place where its conduct distorted the rules governing healthy competition.
- [5] – Judgment of 15 July 2021, Case C-30/20: As regards the question of which court within the Member State thus identified has jurisdiction, it is clear from the very wording of Article 7(2) of Regulation No 1215/2012 that that provision confers directly and immediately both international and territorial jurisdiction on the courts for the place where the damage occurred. As the Advocate General observed in point 46 of his Opinion, that analysis is supported, in particular, by Mr P. Jenard’s report on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1979 C 59, p. 1).
- [6] – Judgment of 15 July 2021, Case C-30/20: This means that the Member States may not apply criteria for the conferral of jurisdiction which differ from those deriving from Article 7(2). However, it must be stated that the delimitation of the court’s jurisdiction within which the place where the damage occurred, within the meaning of that provision, is situated, is as a rule a matter for the organisational competence of the Member State to which that court belongs.
- [7] – Judgment of 15 July 2021, Case C-30/20: It is apparent from the case-law of the Court that where goods are purchased which, following manipulation by their producer, are of lower value, the court having jurisdiction over an action for compensation for damage corresponding to the additional costs paid by the purchaser is that of the place where the goods are purchased (see, to that effect, judgment of 9 July 2020, Verein für Konsumenteninformation, C‑343/19, EU:C:2020:534, paragraphs 37 and 40).
- [8] – Judgment of 21 May 2015, Case C-352/13: According to the settled case-law of the Court, the place where the damage occurred is the place where the alleged damage actually manifests itself (see judgment in Zuid-Chemie, C‑189/08, EU:C:2009:475, paragraph 27). As for loss consisting in additional costs incurred because of artificially high prices, such as the price of the hydrogen peroxide supplied by the cartel at issue in the main proceedings, that place is identifiable only for each alleged victim taken individually and is located, in general, at that victim’s registered office.
