The CJEU doesn’t observe its AG in ‘Apple App retailer’. Stretches the statutory provisions of Brussels Ia to help collective motion below the Dutch WAMCA. – Cyber Tech

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Replace 4 December 2025 I’m happy to see prof Burkhard Hess agrees.

I reviewed Sánchez-Bordona AG’s Opinion in Case C-34/24 Stichting Proper to Client Justice v Apple right here.

The CJEU held yesterday and didn’t observe its AG. In doing so it gave collective motion below WAMCA a lift. This isn’t one thing many will object to. Nevertheless for my part its judgment is pretty clearly contra legem and I don’t assume it’s a good suggestion for the CJEU successfully to legislate on this manner.

The Court docket held that Dutch foundations can consolidate their collective declare in only one court docket in The Netherlands, regardless of the absence of a transparent ex ante procedural rule in Dutch civil process offering for identical.

The foundations at problem are procedural autos, created to carry a category motion swimsuit within the identify of each recognized and unidentified victims of alleged abuse of dominant place by Apple with its payment construction for App Retailer.

With its judgment, the Court docket determined to not observe the Opinion of its Advocate Common. He had urged the Court docket stick to what’s a extra literal studying of the EU guidelines on jurisdiction. This Opinion implied that

except the Dutch guidelines clearly present for such consolidation as an example for all breaches of competitors regulation (clearly sanctioned by CJEU Volvo) – which they don’t (Dutch legal professionals can be higher positioned to clarify why this transformation has not been made within the context of WAMCA); or

except the court docket within the case at problem finds {that a} multitude of claims introduced in varied Dutch court docket – which that they had not – have to be consolidated in a single court docket on the idea of Dutch civil process guidelines,

, the Court docket ought to observe the implications of the particular wording of the EU rule at problem.

In its ruling the Court docket emphasised that consolidating the claims in a single court docket will make it extra environment friendly to carry out the usually advanced factual and financial evaluation required to evaluate sophisticated competitors regulation circumstances just like the one at problem. It additionally highlighted that Apple can hardly be shocked to be sued in a single court docket in The Netherlands given its advertising and marketing of the App Retailer throughout The Netherlands collectively (as Giles Cuniberti notes, this particular concentrate on the Dutch market could imply the authority of the judgment doesn’t stretch to circumstances the place such nationwide advertising and marketing focus is absent).

I get each components. Nevertheless they’re de lege ferenda, not de lege lata. Article 7(2) clearly allocates territorial jurisdiction, not simply nationwide jurisdiction, to the place of particular person hurt which should due to this fact be recognized. Ought to this be thought-about to go in opposition to the curiosity of the sound administration of justice, then the Regulation should be amended (which it has not, regardless of repeated alternative to take action, and regardless of it having been thought-about within the particular context of collective motion, with out it really having been amended).

Notice that [64-65] emphasis on ‘unidentified however identifiable’ echoes the requirement of particular person hurt emphasised additionally in CJEU Mittelbayerisher Verlag:

As is obvious from the request for a preliminary ruling, below Netherlands regulation, a basis or affiliation which brings a consultant motion acts as an impartial promoter of the pursuits of individuals who, though not referred to individually, have related pursuits. These candidates thus train their very own proper, particularly the precise to characterize and defend the collective pursuits of a ‘strictly outlined group’ which brings collectively unidentified however identifiable individuals, particularly customers, whether or not shoppers or professionals, who’ve bought apps created by builders on the App Retailer NL to which these individuals had entry via their Apple ID related to the Netherlands and whose domicile or registered workplace is probably going, for almost all of these customers, to be positioned all through the territory of that State.

That group have to be decided in a sufficiently exact method to allow individuals to specific their place on the end result of the proceedings involved and, the place relevant, to obtain compensation. In that regard, the Netherlands Authorities acknowledged, on the listening to, that the end result of a consultant motion for the defence of the collective pursuits of unidentified however identifiable individuals is binding on the individuals established within the Netherlands who belong to that group and who haven’t expressed their intention to chorus from collaborating in these proceedings.

[66] the CJEU notes

a court docket can’t be required, for the aim of figuring out its territorial jurisdiction to listen to such an motion, on the idea of the place the place the injury occurred, inside the that means of Article 7(2) of Regulation No 1215/2012, to determine, for every alleged sufferer taken individually, the exact place the place the injury that will have been suffered occurred, since these victims are usually not recognized individually on the time when that court docket ascertains whether or not it has jurisdiction; nor can or not it’s required to determine one or a few of these victims.

With respect, that places the horse earlier than the cart. If such willpower can’t be performed, then one could merely should conclude that there can’t be locus damni jurisdiction below Article 7(2), as a substitute turning to locus delicti commissi. Nevertheless in view of its reply to the locus damni problem, the Court docket didn’t reply to the query on the placement of the dangerous occasion /locus delicti commissi.

This can be a query which is of equally basic significance to the efficient implementation of competitors regulation and as I focus on in my earlier put up, may do with clarification. That the Court docket didn’t entertain it is a crucial missed alternative.

Additional, in varied locations within the judgment the CJEU pushes the ‘sound administration of justice’ as a foundational precept of Brussels Ia. As I argue right here, there’s actually little help within the Regulation de lege lata that this precept is core to the Regulation’s jurisdictional matrix. The CJEU clearly pushes it as one.

Total there can be few who can have sympathy for an financial participant the dimensions of Apple who now can extra realistically be sued in a single court docket somewhat than claimants having to first carry the declare throughout the entire of The Netherlands. In that respect the judgment echoes an earlier one introduced in opposition to Volkswagen within the context of the Dieselgate scandal. In that judgment, the Court docket allowed particular person, second hand  purchasers of a faulty automobile to sue the producer successfully of their particular person place of domicile. In that case due to this fact Volkswagen was inconveniently compelled to defend the declare in a mess of jurisdictions.

The inconvenience for Apple in present case is that it’s being sued in a single place by a extra subtle claimant. Nevertheless the hazard for my part lies within the Court docket successfully making use of the regulation with the perceived unpopularity or sophistication of one of many events in thoughts. If present EU procedural regulation seems to be ineffective in holding massive enterprise to account, then that regulation have to be modified by the legislator. I don’t assume the Court docket should do it within the legislator’s stead, in circumstances the place the regulation’s specific provisions are clear.

Geert.