If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.
I flagged the Amsterdam courts’ reference to the CJEU in Case C-34/24 Stichting Right to Consumer Justice v Apple here. Sánchez-Bordona AG opined late March.
The application software (apps) for Apple devices which use iOS can be purchased from Apple’s ‘App Store’. Where a user whose Apple ID indicates the Netherlands as the country or region attempts to purchase a product in the App Store, that user will normally be redirected to the Netherlands online shop (‘App Store NL’). To change the country associated with their Apple account, users must accept new terms and conditions, and must also have a valid payment method in that new country.
Applicant foundations are acting in the interests of all users (consumers and professional users) of Apple products and services who have been offered or have purchased products and services from App Store NL. They claim that Apple holds a dominant position in the market for distribution of apps which run on iOS, and in the payment system for those apps (IAP); that Apple is abusing its dominant position, within the meaning of A102 TFEU; and that the abuse of a dominant position involves the receipt of excessive commission on the sale price received, through the IAP payment system, for apps in the App Store and that this is an unlawful act against users.
Apple argue that jurisdiction for the Amsterdam courts cannot be based on A7(2) BIa because the alleged harmful event did not occur in the Netherlands. That event cannot be located in Amsterdam (Netherlands) since no specific event took place exclusively or in particular in Amsterdam or in the Netherlands. In the alternative, Apple maintains that the referring court has jurisdiction only as regards users who live in Amsterdam or who make purchases in Amsterdam via App Store NL.
The AG first of all recalls the principles of A7(2) forum delicti jurisdiction. Readers of the blog and /or Handbook will be very familiar with those.
Place of the event giving rise to the damage /Handlungsort /Locus delicti commissi
The AG (50) opines that “the principle that the decisive causal event, for the purposes of [A7(2) BIa] is synonymous with acts which implement the abuse of a dominant position is, to my mind, generally valid: its specific expression varies from case to case.” Reference in the main is made to C-27/17 flyLAL.
As I discussed at the time, this conclusion is not clear from the judgment in flyLAL itself. The AG also concedes that the CJEU’s approach is not clear, as also results from ia AMS Neve or Wintersteiger. I would most definitely applaud a CJEU confirmation of a rule I proposed earlier, that any and all places of implementation of abuse, are loci delici commissi /Handlungsorten.
In the case at issue, the AG sees identification of locu delicti commissi as follows (footnote 28):
treating the abuse of a dominant position as the sale to the end user in App Store NL may be an oversimplification. While the harmful effects claimed are, certainly, on the users’ side, the (alleged) abuse of the dominant position occurs, on the developers’ side, in the form of the unilateral imposition of conditions on those wishing to provide services that are executable on iOS. Those conditions include use of the IAP and the commission which Apple deducts from the price which iOS users pay developers (and which developers pass on to users). In my view, the imposition of those conditions is the event giving rise to the damage for the purposes of determining jurisdiction.
However (53) “as a working hypothesis, I shall proceed on the basis of the referring court’s choice of that event.” (‘that’ being the sales to the end user). This is a bit odd for surely the AG could have cut to the chase and directly put forward his own view on the ldc, seeing as ldc questions are being referred.
At any rate, taking the ‘place of the sale’ as ldc creates its own difficulties. The referring court believes that ‘the sale’ occurred in the Netherlands. Geolocation of consumers in The Netherlands via their Apple ID, and territorial ‘targeting’ by Apple (57; echoes here of the consumer title’s direction of activities) suggest a ‘Dutch’ territory however that does not help us for the territorial allocation required for A7(2) locus damni determination. (62) One could pinpoint he conferral of jurisdiction to where in the Netherlands the device used to access App Store NL was located at the time of the sale. However that (63) creates issues of evidence, and multiplicity of proceedings.
(72) the AG, having referred to a number of CJEU authority both confirming the territorial identification of a court by A7(2), and the difficulties in identifying such a court, settles for
for a user who, by virtue of his or her Apple ID, is directed to App Store NL, all sales through that App Store occur at that user’s place of residence or establishment in the Netherlands, disregarding his or her actual physical location in that country at the time of each sale. (emphasis added)
(74) “That approach involves acceptance of a forum actoris which, in my view, is justified in the light of Apple’s commercial strategy.” : that strategy further explained as one where a specific audience is territorially ‘sought’: in other words (my words) if the seller uses geolocation and other territorial distinctions, it should not be surprised to be sued there. (This again echoes the consumer title).
Place where the damage occurred /Erfolgort /locus damni
This discussion is even more challenging than the Handlungsort. The referring court asks whether, in order to identify the competent court on the basis of the place where the damage occurred, ‘where the place where [the] purchases took place cannot be determined’, the user’s domicile may be used as a connecting factor. With reference to a number of authorities the AG believes it could, again supporting that conclusion by reference to Apple’s commercial strategy: (83)
the connecting factor based on the user’s domicile is, a fortiori, especially appropriate where, as here, the defendant (Apple) structures its business through the fragmentation, by country, of the market concerned and links end users to that market.
(84) Apple’s GTCs (not applicable here seeing as the claims are non-contractual) referring to the consumer’s place of habitual residence for both choice of court and -law is also referred to in support; of course those terms are an acknowledgment of the consumer title of Brussels Ia and informed by the consumer title of Rome I – yet they at any rate indeed support the conclusion that Apple can hardly be surprised to be sued in The Netherlands.
The impact of the representative action
This section has ruffled feathers: see ia Cécile Rouméas and Miguel Soussa Ferro. (92) The AG in my view justifiably insists on A7(2) forum possibilities being determined by reference to the original ldc and /or ld: “the assignment of a claim or the collective nature of an action do not preclude reliance on [A7)2], [however] international and territorial jurisdiction thereunder will continue to be set, in any event, by reference to the act which gave rise to the damage or the place where the damage occurred.”
(94) “A claim for damages does not lose its connection to the place where the harmful event occurred as a result of the transfer of the claim or because a third party takes over the claim pursuant to a legal provision. The event giving rise to the damage is also the same, and the evidence continues to be where it has always been.” : he is right, given the very origin of the ldc /ld distinction in CJEU Bier, and the territorial links between the court with special jurisdiction, and the events that led to the claim.
(96) “Compliance with the ‘predictability’ criterion precludes the court having jurisdiction, in respect of the same event giving rise to the damage, from changing according to whether the applicant is the holder of the interests, his or her successor, or a representative (of that holder or those interests).”
The AG acknowledges (97) “that, within a Member State, that requirement reduces the usefulness of the representative action mechanism where the national legislature has chosen [unlike eg in Austria, and see also CJEU Volvo, GAVC] not to designate a court having sole jurisdiction for the whole territory which hears that type of action.” (101) the AG equally justifiably points to the representative action having been discussed in the run up to Brussels I’a amendments, 2012 onwards. However no change in A7(2) was made.
This is exactly the type of amendment the EC may wish to put forward in its proposal for amendment, if any, of Brussels Ia and I do not see a de lege lata way to change it now. (For instance as I argue in a forthcoming chapter in a Kramer /Voet /Dori volume, ‘access to justice’ or ‘sound administration of justice’ de lege lata are not principles of Brussels Ia].
Member States may in the meantime find solace indeed in CJEU Volvo and the possibility for them to concentrate proceedings ex ante. The AG adds to this in conclusion of his Opinion, the possibility to concentrate those proceedings ex post, specifically via national lis pendens rules: this however requires ad hoc assessment which is not a risk funders etc of actions of this kind may be prepared to take.
Geert.