Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered
on 27 March 2025 (1)
Case
C‑34/24
Stichting Right to Consumer Justice,
Stichting App Stores Claims
v
Apple Distribution International Ltd,
Apple Inc.
(Request for a preliminary ruling from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands))
( Reference for a preliminary ruling – Abuse of a dominant position through sales on an online platform – Judicial cooperation in civil and commercial matters – Interpretation of Article 7(2) of Regulation (EU) No 1215/2012 – International jurisdiction – Territorial jurisdiction – Place of the causal event – Place where the damage occurred – Representative actions – National procedural rule on the concentration of proceedings before a single court )
1.        The dispute giving rise to the present reference for a
preliminary ruling concerns actions brought by two foundations (2) established in the Netherlands against Apple Inc. and its European subsidiary Apple Distribution International Ltd. (3)
2.        The applicant foundations brought the two representative actions (4) under the Wet afwikkeling massaschade in collectieve actie. (5) In those actions, the applicants claim that the referring court should find that Apple Inc. and Apple Ireland engaged in conduct contrary to competition law and order those companies to pay damages.
3.        The reference for a preliminary ruling does not concern the substance of the dispute but rather only the jurisdiction of the Netherlands court (or, as the case may be, courts) which must adjudicate on it.
I.      Legal framework
A.      European Union law: Regulation (EU) No 1215/2012 (6)
4.        Article 7(2) provides:
‘A person domiciled in a Member State may be sued in another Member State:
…
(2)      in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.
B.      National law
5.        The following are relevant:
the WAMCA, Article 3:305a of the Burgerlijk Wetboek (Civil Code; ‘the BW’), and Articles 1
to 14, 209, 220, Article 1018c(3), Article 1018d(1), and
Article 1018e(1) to (3) of the Wetboek van Burgerlijke Rechtsvordering (Code of Civil Procedure; ‘the Rv’).
II.    Facts, dispute and questions referred
A.      Background to the dispute: operation of the App Store
6.        The following account is taken, essentially, from the order for reference.
7.        Apple produces a range of portable devices (such as the iPhone and the iPad) which run on a pre-installed operating system (iOS). The iOS operating system is developed and operated by Apple.
8.        The application
software (apps) for Apple devices which use iOS can be purchased (7) from Apple’s ‘App Store’.
9.        The App Store is an apps sales platform developed and operated by Apple. Since 2009, it has been systematically installed on Apple devices equipped with new versions of iOS.
10.      The App Store offers apps free of charge and in return for payment. Some are original
apps, that is, they were developed by Apple; others were developed by third parties (‘developers’). The dispute at the origin of the present reference concerns only the latter type of app.
11.      Some apps have integrated digital products, in other words, functions, services or products which can be unblocked or purchased in the app, such as, inter alia, subscriptions and game accessories.
12.      Payments in the App Store for apps (or in-app products) (8) that are not free of charge are made, as a rule, using a payment system introduced in 2009 (‘in-app purchase’; ‘IAP’).
13.      Apps which can be used on Apple devices are principally those which are available in the App Store: apps downloaded from other sources ‘do not work, or at least not as well’. (9)
14.      To use the App Store, users of Apple devices must create an Apple account (formed from a unique combination of a username and password), which is also known as an ‘Apple ID’.
15.      The terms and conditions of Apple multimedia services apply to use and to purchases made in the App Store. For European users who make a purchase in the App Store, Apple Ireland
acts as the app supplier’s representative.
16.      The availability of apps in the App Store may vary from one country to another. The App Store has an online shop for each country which is used according to the user’s configuration and is specific to that country.
17.      Therefore, 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’). (10) 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.
18.      The App Store is the (only) opportunity for developers to offer their apps to users of Apple devices. For that purpose, developers must conclude an agreement with Apple Inc. (‘Developer Program License Agreement’). In return for payment of an annual fee, a developer participates in the Apple Developer Program and obtains licences for the iOS software and its apps.
19.      Developers propose their apps to Apple, which decides whether to include them in the App Store. If it decides to do so, they become licensed apps and are digitally signed by Apple.
20.      If a developer receives payment for an app, that developer must comply with the distribution terms: in particular, the developer undertakes to ensure that users use the IAP payment system when they purchase an app. To that end, developers conclude an independent agreement with Apple.
21.      Apple offers apps exclusively in the App Store, acting as the developers’ agent. This means that it acts on its own account and concludes agreements in its own name, but, ultimately, operates for the benefit of other persons. All developers
continue to be liable in the event of a dispute concerning the operation of their apps.
22.      The amount payable for an app is paid by the user to Apple, which collects it through the IAP payment system. As a rule, Apple deducts 30% of the amount paid by way of commission; if the period of use of the product is extended, that percentage may be 15%. After deducting the commission, Apple transfers the balance to the developer.
B.      The dispute before the referring court
23.      The 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. Their representative actions were brought in 2021 and 2022.
24.      The applicants, in essence, claim that the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) should:
–        find that Apple Inc. and Apple Ireland
acted unlawfully vis-à-vis users of software apps which run on iOS, and
–        declare that the defendants are jointly and severally liable to pay damages.
25.      In support of
their claims, the applicants argue 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);
–        Apple is abusing its dominant position, within the meaning of Article 102 TFEU; (11) and
–        the abuse of a dominant position involving the receipt of excessive commission on the sale price received, through the IAP payment system, for apps in the App Store is an unlawful act against users.
26.      Apple rejects the jurisdiction of the rechtbank Amsterdam (District Court, Amsterdam). In its submission, that jurisdiction cannot be based on Article 7(2) of Regulation No 1215/2012, 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.
27.      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. Apple submits that, as regards the claims relating to all other users, the referring court does not have international or territorial jurisdiction under Article 7(2) of Regulation No 1215/2012.
28.      In an interlocutory decision of 16 August 2023, the referring court held, in relation to Apple Ireland, that the proceedings fall within the scope of Regulation No 1215/2012.
29.      In that connection, the referring court found that, in accordance with Article 7(2) of Regulation No 1215/2012, the
Netherlands courts have international jurisdiction on the basis of both the place of the causal event and the place where the damage occurred. However, it is not clear which of those courts has territorial jurisdiction.
30.      In the same decision, the referring court set out its uncertainties
regarding the effects of the representative actions having been brought, under Article 3:305a of the BW, by a legal person by virtue of its own right (that is, not as an agent, representative or assignee). The referring court is unsure whether that fact could have a bearing on the determination of territorial jurisdiction, in accordance with Article 7(2) of Regulation No 1215/2012.
31.      The referring court also stated that, if it must be accepted that, within the Netherlands, territorial jurisdiction to hear a representative action is shared between courts of different districts, cases could still be concentrated before a single court pursuant to provisions of national law. However, the court is also uncertain whether that is compatible with Article 7(2) of Regulation No 1215/2012.
C.      Questions referred for a preliminary ruling
32.      Against that background, the rechtbank Amsterdam (District Court, Amsterdam) has referred the following questions to the Court of Justice for a preliminary ruling:
‘Question 1 (Handlungsort)
(a)      In a case such as that at issue in these proceedings, where the alleged abuse of a dominant position within the meaning of Article 102 TFEU took place in a Member State by means of sales through an online platform operated by Apple and aimed at the entire Member State, with Apple Ireland acting as exclusive distributor and commission agent of the developer and deducting commission from the purchase price, what should be considered to be the place where the harmful act occurred within the meaning of Article 7(2) of [Regulation
No 1215/2012]? Is it relevant in this regard that the online platform is in principle accessible worldwide?
(b)      Does it matter in this context that these proceedings concern claims brought under Article 3:305a [of the BW] by a legal person whose purpose, by virtue of its own right, is to represent the collective interests of multiple users having their registered offices in different jurisdictions (in the Netherlands: “arrondissementen”: districts) within one Member State?
(c)      If, on the basis of question 1(a) (and/or 1(b)), not only one but several internal territorially competent courts are designated in the Member State concerned, does Article 7(2) of [Regulation No 1215/2012] preclude the application of national (procedural) law that allows referral to a single court within that Member State?
Question 2 (Erfolgsort)
(a)      Is it possible that, in a case such as that at issue in these proceedings, where the alleged damage occurred as a result of purchases of apps and digital in-app products through an online platform operated by Apple (the App Store), with Apple Ireland acting as exclusive distributor and commission agent for the developers and deducting commission from the purchase price (and where there has been both an alleged abuse of a dominant position within the meaning of Article 102 TFEU and an alleged infringement of the prohibition on restrictive agreements within the meaning of Article 101 TFEU) and where the place where those purchases took place cannot be determined, only the registered office of the user can serve as the connecting factor for the place where the damage occurred within the meaning of Article 7(2) of [Regulation
No 1215/2012]? Or are there also other connecting factors in this situation which could be applied to identify a competent court?
(b)      Does it matter in this context that these proceedings concern claims brought under Article 3:305a [of the] BW by a legal person whose purpose, by virtue of its own right, is to represent the collective interests of multiple users having their registered offices in different jurisdictions (in the Netherlands: “arrondissementen”: districts) within a Member State?
(c)      If, on the basis of question 2(a) (and/or 2(b)), an internal territorially competent court in the Member State concerned is designated which has jurisdiction only over the claims of some of the users in that Member State, while other territorially competent courts in the same Member State have jurisdiction over the claims of other users, does Article 7(2) of [Regulation
No 1215/2012] preclude the application of national (procedural) law which allows referral to a single court within that Member State?’
III. Procedure before the Court of Justice
33.      The request for a preliminary ruling was received at the Court Registry on
18 January 2024.
34.      Written observations were lodged by the applicant foundations, Apple Inc. and Apple Ireland, the Netherlands and Portuguese Governments, and the European Commission. All of these, with the exception of the Portuguese Government, attended the hearing held on
10 December 2024.
IV.    Analysis
35.      The referring court is seised of a dispute in which two foundations that safeguard the interests of multiple users seek two forms of order against Apple: a finding of an infringement on the grounds of abuse of a dominant position and an order for damages against the infringing undertakings.
36.      The referring court appears to have decided already that it has international jurisdiction to adjudicate on the dispute. (12) That court now seeks to ascertain whether it also has territorial jurisdiction for the purposes of Article 7(2) of Regulation No 1215/2012.
37.      I think it is helpful, first of all, to recall a number of relevant aspects of that article as interpreted by the Court. I shall then deal with the answers to the question in the light of those considerations.
A.      Article 7(2) of Regulation No 1215/2012
38.      Article 7(2) of Regulation No 1215/2012 lays down a special rule of jurisdiction. Under that rule, an applicant may bring an action for liability in tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.
39.      The expression ‘place where the harmful event occurred or may occur’ encompasses ‘either …
the place where the damage occurred or the place of the event giving rise to it’, where those are not the same.(13) In legal literature (and in the order for reference),
they tend to be referred to as ‘Erfolgsort’ and
‘Handlungsort’, respectively. It is for the applicant to choose between them. However, the rule of jurisdiction is not designed to favour the victim. (14)
40.      As a special rule, it must be interpreted strictly.(15)
41.      The special rule must also be interpreted independently, which excludes reliance on national legal concepts or making the identification of the connecting factor dependent on assessment criteria having their source in national substantive law. (16) The ‘circumstances specific to the type of action provided for by the applicable national law’ are, therefore, immaterial. (17)
42.      The reasons why the EU legislature laid down the rule in Article 7(2) of Regulation No 1215/2012 are set out in recital 16 thereof and are key to the interpretation given to that rule by the Court: (18)
–        The court designated in accordance with that rule has a particularly close connection to the dispute by reason of its geographical proximity to objective elements. (19) Those elements will serve as evidence that the unlawful act was committed and of its consequences and, by those means, contribute to the sound administration of justice. (20)
–        By virtue of that proximity, the applicant will be able easily to identify the court having jurisdiction, after the events have taken place. (21) For the defendant, that court is also predictable before the events take place, since it is located in the same place as his or her activities (the alleged unlawful act). (22)
43.      The Court’s interpretation of Article 7(2) of Regulation No 1215/2012 implies that that provision
confers directly and immediately both international and territorial jurisdiction on the courts for the place where the harmful event occurred or may occur. (23)
44.      According to the Court, the Member States ‘may not apply criteria for the conferral of jurisdiction which differ’ from those deriving from Article 7(2). (24)
45.      That case-law is settled, presents arguments in its favour (25) and appears to comply with the legislature’s intentions. Acceptance that Article 7(2) of Regulation No 1215/2012 designates directly the court with international and territorial jurisdiction reflects the intentions of the legislature at the time when the provision was adopted. The amendments made to the wording of the provision since then do not cast doubt on those intentions.
B.      Question 1(a) and question 2(a)
46.      The referring court asks which court has territorial jurisdiction, on the basis of the place of the causal event (question 1(a))
and of the place where the damage occurred (question 2(a)), in circumstances such as those at issue in the present proceedings. Both questions disregard, for now, the difficulties relating to the effects of representative actions (with which question 1(b) and
question 2(b) are concerned).
1.      Place where the event giving rise to the (alleged) damage occurred
(a)    Which event gave rise to the damage?
47.      The referring court proceeds on the basis that the damage to users (on the existence of which, logically, it has not yet ruled) results from conduct by Apple which the applicant foundations categorise as abuse of a dominant position, within the meaning of Article 102 TFEU.
48.      That conduct consists essentially in the imposition by Apple, taking advantage of its dominant position, of excessive commission on developers of apps for the App Store. The amount of that commission is subsequently passed on to users, thereby increasing the price which they are required to pay when they download apps from App Store NL.
49.      It is not in dispute that, in the abstract, an anticompetitive practice, by means of which an undertaking abuses its dominant position, is liable to give rise to damage. The Court referred to the location of the event giving rise to that damage, in an action for compensation for abuse of a dominant position, in its judgment in
flyLAL-Lithuanian Airlines. (26)
50.      The principle that the decisive causal event, for the purposes of Article 7(2) of Regulation No 1215/2012, 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.
51.      Applying that criterion, the referring court identifies the causal event as the sale of apps in App Store NL, in relation to which Apple acts as exclusive distributor and agent of the developers and retains a commission on the price paid by users. (27)
52.      The referring court believes that the courts
of the Netherlands, as the market affected by the unlawful conduct, may have international jurisdiction, in view of the fact that the sales (also) take place in that country.
53.      I am not fully persuaded that, in the circumstances of the present case, that is the most appropriate choice of causal event. (28) However, as a working hypothesis, I shall proceed on the basis of the referring court’s choice of that event.
(b)    Where did the event giving rise to the damage occur?
54.      The determination of the place where the sale of apps through App Store NL took place, for the purposes of Article 7(2) of Regulation No 1215/2012, is not without difficulties. While the referring court believes that the sale occurred in the Netherlands, in one of its questions (2(a)) it acknowledges that ‘the place where those purchases took place cannot be determined’.
55.      I shall begin by stating that, in those circumstances, it is possible to use the same approach which the Court has already allowed in other judgments. Where it is very difficult or impossible to determine the place of the event giving rise to the damage, the option afforded to the applicant by Article 7(2) of Regulation No 1215/2012 is to bring proceedings in the court having jurisdiction on the grounds of the place where the damage occurred. (29)
56.      I am aware that, on other occasions, the Court chose a different approach and, with a view to safeguarding
the option afforded by Article 7(2) of Regulation No 1215/2012, ruled out interpretations which made it ‘excessively difficult’ or ‘impossible’ for the applicant to identify the place of the causal event, and suggested others. (30) Accordingly, I shall also explore that approach.
57.      According to the referring court, on App Store NL, Apple supplies apps specifically targeted at consumers and undertakings in the Netherlands. For the purpose of purchasing apps, Apple redirects users who, when they set up their Apple account or ID, indicated that Member State as their location, to that specific online shop (App Store NL).(31) At the same time, Apple restricts the access of those users (whose Apple ID locates them in the Netherlands) to other App Stores created for the public in other States.
58.      I believe that the argument to justify the jurisdiction of the Netherlands courts (or, in general, the courts
of any other Member State) on the basis of the place of the causal event is not, therefore, merely the accessibility of an App Store (32) from the territory of that State.
59.      To my mind, that conferral of jurisdiction actually results in a ‘location fiction’: iOS users who, according to their Apple ID, are established in the Netherlands are assumed to purchase their apps in that country when they use App Store NL. (33) The commission giving rise to the surcharge to the detriment of users is charged at the time of that sale (34) which is ‘located’ on Netherlands territory.
60.      Accepting that, in that way, the virtual space replicates the geographical space of the Member State, (35) what that purchase mechanism lacks (and would, indeed, be difficult for it to include) is a single connecting factor which would enable proceedings to be allocated to a particular court within the Netherlands.
61.      In the referring court’s view, there is no clear connecting factor according to which actions are allocated to the courts of one Netherlands district and not to the courts of another. App Store NL covers the whole of the Netherlands (it is accessible throughout its territory) and, in relation to a sale through that App Store, it is not possible, strictly speaking, to refer to a specific place where a particular transaction is carried out. Furthermore, it is open to question whether, in those circumstances, Article 7(2) of Regulation No 1215/2012 would lead to the identification of a court having jurisdiction
ratione locis, out of all the courts of the Member State having jurisdiction
ratione materiae.
62.      If the ‘location fiction’ to which I referred above is adopted, it could be argued, in principle, that territorial jurisdiction lies with the Netherlands court in whose district the sale was made through App Store NL. The conferral of jurisdiction would depend on where in the Netherlands the device used to access App Store NL was located at the time of the sale. (36)
63.      However, that solution is impractical. First, Apple devices used to make purchases (download apps) are frequently mobile: their location is random, changeable and difficult to prove. Secondly, if the place of each sale were taken into account as individual evidence of the abuse of a dominant position in the Netherlands, that would open the way to multiple proceedings in that State. (37)
64.      In its observations, one of the applicant foundations argues that, on the basis of both the unlawful act and the (virtual) medium on which it takes place, ‘any Netherlands court’ has territorial jurisdiction under Article 7(2) of Regulation No 1215/2012. (38)
65.      Advocate General Jääskinen interpreted the provision as conferring territorial jurisdiction on ‘each’ of the courts of a Member State (whose public has been targeted)
in his Opinion in Case
C‑170/12. (39) In that Opinion, he proposed that, in order to identify the court having international jurisdiction on the basis of the place where the damage occurred, account should be taken of the fact that the activity of a website is aimed at a particular Member State. The Court did not accept that location criterion.
66.      In my view, an interpretation of Article 7(2) of Regulation No 1215/2012 which, from the perspective of international and
territorial jurisdiction, leads to the consideration that all the courts of a Member State are
interchangeable, is rather paradoxical. The aim of that provision is to identify one court in particular on the basis of its particular geographical connection to the material facts of the dispute. (40)
67.      The existence of multiple competent courts (or rather, multiple simultaneous proceedings in a number of courts, liable to conclude with potentially inconsistent judgments) is an outcome which must generally be avoided when interpreting Regulation No 1215/2012, and also where Article 7(2) is concerned. (41)
68.      Therefore, when faced with complex factual situations, the Court has tended to choose one court in particular as relevant for the purposes of establishing jurisdiction. This ‘prevents a proliferation of jurisdictions. That accords with the special nature of the jurisdiction … and the need for a restrictive interpretation, whilst also increasing predictability’. (42)
69.      Regarding the place where the damage occurred, the Court has accepted multiple courts while also limiting each court to adjudicating on the damage suffered in the territory of the Member Sate to which it belongs. (43)
70.      A single court having jurisdiction on the same basis (the place where the damage occurred) was also the approach taken in an action in respect of additional costs on purchases of a number of goods affected by collusive arrangements: where such goods were not purchased in the district of a single court in the Member State where the (or an) affected market is located, jurisdiction lies with the courts for the purchaser’s residence. (44)
71.      However, it is difficult to maintain that line of argument in circumstances such as those at issue in the present case, where the sale does not take place, strictly speaking, in a material space but rather in a digital universe. Once again, it is necessary to have recourse to a ‘location fiction’ to identify a single location for that sale, by selecting from the possible places one which acts as a single fictional location of the defendant’s activities in the Member State where it is abusing its dominant position.
72.      From that perspective, it is possible to determine that, 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.
73.      Therefore, a user (or group of users residing in the same territorial jurisdiction) may bring an action, on the basis of the place of the causal event, before the courts for their place of residence in the market affected by Apple’s anticompetitive practice, in relation to purchases made through the App Store targeted at that market.
74.      That approach involves acceptance of a
forum actoris which, in my view, is justified in the light of Apple’s commercial strategy. (45) Consequently, its focus is not the protection of the victim. (46)
2.      The place where the damage occurred
75.      The difficulties which I have set out above with regard to determination of where the causal event (being understood to mean the sales of apps to users in App Store NL) occurred
are minor in relation to the place where the damage occurred.
76.      The (alleged) damage to users consists of the additional costs they pay to download apps from the App Store. The price of the app increases because the developers of that app pass on to users the commission imposed on them by Apple.
77.      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.
78.      In relation to the interpretation of Article 7(2) of Regulation No 1215/2012, the Court has held as follows:
–        damage which ‘results essentially from the additional costs incurred because of artificially high prices’ may be categorised as ‘direct damage which, in principle, provides a basis for the jurisdiction of the courts of the Member State in which it occurred’; (47)
–        ‘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 7(2) of Regulation No 1215/2012’. (48)
79.      Jurisdiction is based, therefore, on the occurrence, in the same Member State, of two elements: the affected market and the place in which the particular victim suffers the damage. In the present case, the Netherlands is the (an) affected market.
80.      If the unlawful conduct (the alleged abuse of a dominant position) has resulted in a transfer from the victim’s assets to those of the infringer, through the payment of a surcharge, in a material (as opposed to a virtual) context, the Court has accepted as the place where the damage occurred either the place where the item subject to the surcharge was purchased, (49) or the victim’s domicile. (50) The Court has also treated the place of delivery as the place where tangible goods were purchased. (51)
81.      Following that guidance, I believe that, for the purpose of identifying the place where the damage arose in the present dispute, it is possible to use as a connecting factor the victim’s place of establishment or domicile in the Netherlands, where the market affected by the abuse of a dominant position is also situated.
82.      Where the damage consists of additional costs and the user purchases the product (the value of which is lower than the price paid) in the virtual sphere, using a digital app, which lacks substantive form, I believe that it is unhelpful to attempt to locate the competent court by reference to the place of delivery of that product. (52)
83.      On the contrary, 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.      Lastly, it must be borne in mind that, as the referring court stated in the interlocutory decision of
16 August 2023, (53) Apple Ireland includes a jurisdiction clause in its contracts with users for use of the App Store. Where a user resides in a Member State of the European Union, the applicable law and the competent court are those of the country where that user has his or her place of habitual residence. That is a fact of which Apple is consequently aware and it can hardly allege the unpredictability of claims in the Netherlands which, although not covered by the choice of jurisdiction clause (applicable to its contractual liability), arise as a direct result of purchases in App Store NL.
85.      I can see no reason why the damage resulting from an excessive transfer of assets, which is inherent in the payment of an additional cost, should not be located, within the affected market, at the place of the victim’s domicile which, as a rule is where the victim’s assets are concentrated.
86.      If that approach is accepted, there is no need to require another connecting factor, such as the fact that the user’s bank account from which the payment is made is situated in the same jurisdiction. In the circumstances described, I believe that the proposed approach meets the objectives of proximity and predictability of the jurisdiction rule.
C.      Question 1(b) and question 2(b)
1.      Lack of effect of the representative nature of the action
87.      Nothing precludes the bringing of representative actions in situations involving a cross-border element, as occurs in the present proceedings.
88.      To date, the Court has not addressed the effect which representative actions may have in such situations. (54)
89.      As I have already mentioned, Article 7(2) of Regulation No 1215/2012 lays down a special rule for the determination of jurisdiction in actions concerning non-contractual obligations based on a debtor’s liability vis-à-vis a creditor.
90.      That rule is not a personal privilege which favours creditors alone: it may be used by other persons, inter alia, by a creditor’s representatives or successors in law. (55) It may also be used by promotors of individual, but common, interests, (56) or of a general interest. (57)
91.      The aim of Article 7(2) of Regulation No 1215/2012 is to allocate (international and local) jurisdiction to a court which has a special geographical connection to the place of the causal event or the damage caused.
92.      Therefore, where the assignment of a claim or the collective nature of an action do not preclude reliance on that article, 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.
93.      In my view, that statement applies equally to actions brought by an entity on which the law confers its own right, that is, a right that is not dependent on a mandate or an assignment, for the purpose of obtaining compensation for individual damage. Two arguments support this:
–        First, the qualification to bring proceedings of the entity bringing the representative action does not, in fact, change the subject matter of the proceedings. Those proceedings are aimed, ultimately, at obtaining individual compensation for each directly affected individual. Underlying the collective action are the individual claims: the right to receive compensation, and the amount of that compensation, must be established at the end, separately for each of the injured parties (as the case may be, under the supervision of the same court which finds that there is such a right).
–        Secondly, just as the determination of the ‘place where the harmful event occurred’ cannot be dependent on the law applicable to the substance of civil liability, (58) nor can it be depend on the structure of proceedings which varies according to the Member State concerned.
94.      Jurisdiction which lies with the courts for the place of the event giving rise to the damage is derived from the unlawful act, which is the same regardless of who the real creditor is or who acts as the applicant. 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.
95.      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).
96.      Thus, an entity which brings representative actions may only raise its claim before a single court (under Article 7(2) of Regulation No 1215/2012) if the harmful event: (i) is either a single event and occurred, or may occur, in the territorial jurisdiction of that court; (ii) or all the relevant
events (that is, each event affecting the ultimate holders of the represented interest) occurred in that jurisdiction.
97.      I recognise that, within a Member State, that requirement reduces the usefulness of the representative action mechanism where the national legislature has chosen not to designate a court having sole jurisdiction for the whole territory which hears that type of action. (59)
98.      Indeed, constrained by the boundaries of territorial jurisdiction of each national court, the qualified entity must delimit the objective and subjective scope of the representative action, locating the ‘harmful event’, within the meaning of Article 7(2) of Regulation No 1215/2012, in the jurisdiction of each of those courts. (60) A broader defence of the interests at issue, covering events and damage occurring in other territorial jurisdictions of the same Member State would necessitate the multiplication of proceedings, in accordance with those geographical jurisdictions.
99.      It could be argued that that approach is not compatible with the rationale of representative actions, which do not take account of the proximity of the dispute to the court seised but rather the similarity of the interests defended. But that solution, however unsatisfactory it may appear, is the one which flows from the application of Article 7(2) of Regulation No 1215/2012 to a context whose rules have not been amended to adapt them to the new reality (representative actions).
100. Under the current rules, (61) a qualified entity seeking to bring a single representative action for compensation in respect of infringements which occurred in different places in the Netherlands, where the consequences were suffered in more than one jurisdiction of that country, and which sues a defendant domiciled in another Member State, must lodge its application in the latter State. (62)
101. The difficulties related to representative actions in cross-border contexts were known at the time (2012) when
Regulation No 1215/2012 was recast. In view of the divergent national models which existed at the time, it was ultimately decided not to introduce specific rules into the regulation, pending developments in the law in that field. (63)
102. Those developments have already happened but have not led to changes in the rules on the conferral of international jurisdiction. (64) As I shall point out below, Directive 2020/1828 (the adoption of which might have been an ideal time to do it) did not amend Regulation No 1215/2012.
103. I believe, in short, that the answer to question 1(b) and question 2(b) must be that, as EU law currently stands, the interpretation of Article 7(2) of Regulation No 1215/2012 does not differ on the basis that the action was brought by an entity qualified under national law to bring representative actions, in its own name, to protect the interests of multiple users.
2.      Directive 2020/1828
104. Directive 2020/1828 is not applicable here, (65) either ratione temporis
(it applies only to actions brought on or after
25 June 2023) or ratione materiae (its scope does not cover, in principle, representative actions alleging an infringement of the rules of jurisdiction).
105. Without minimising the importance of the aim of strengthening the practical effect of that directive, (66) I am not persuaded that that aim justifies an interpretation which distorts the special rule of jurisdiction to the extent described.
106. It must be recalled, in that connection, that ‘[ensuring] consistency between different instruments of EU law cannot, in any event, lead to the provisions of a regulation on jurisdiction being interpreted in a manner that is unconnected to the scheme and objectives pursued by that regulation’. (67)
107. Directive 2020/1828 has not amended Regulation No 1215/2012. Furthermore, Article 2(3) of that directive provides that it ‘is without prejudice to Union rules on private international law, in particular rules regarding jurisdiction and the recognition and enforcement of judgments in civil and commercial matters …’. (68)
108. On the same lines, recital 21 of Directive 2020/1828 explains that ‘existing instruments of Union law should apply to the procedural mechanism for representative actions required by this Directive’.
109. The EU legislature therefore sought to make representative actions subject to the existing rules of international jurisdiction. Strictly speaking, there is no legislative gap which the interpreter is permitted to fill but rather an intentional exclusion which the legislature wished to retain.
110. The correct transposition of Directive 2020/1828 is the responsibility of the Member States. For the purposes of that transposition, Member States must have taken or must take into account the fact that the directive refers to the rules of international jurisdiction laid down in Regulation No 1215/2012, which it leaves unchanged.
111. I have already indicated that a number of Member States, conscious of the effects of Article 7(2) of Regulation No 1215/2012 on cases such as the present case, decided to establish a single territorial jurisdiction (and a single competent court) for representative actions. (69)
112. Other Member States, such as the Netherlands, appear to have decided to adopt amendments
ex post, albeit only in relation to the bringing of a number of related actions. I shall examine that possibility, referred to in question 1(c) and question 2(c), below.
3.      In the alternative: acceptance of the effects of the representative nature of the action
113. A number of parties and interveners have put forward alternative proposed interpretations of Article 7(2) of Regulation No 1215/2012, with a view to facilitating the implementation of representative actions. (70) Essentially, those proposals:
–        suggest taking into account the place of establishment of the entity bringing the action; (71)
–        propose as the forum the place where one or more of the persons concerned may sue; (72)
–        argue that all Netherlands courts are equally competent to hear representative actions; (73)
–        limit the scope of Article 7(2) of Regulation No 1215/2012 to international jurisdiction, referring to domestic law for allocation of the court with territorial jurisdiction. (74)
114. I believe that, to a greater or lesser extent, those proposals conflict with the principles which underlie Article 7(2) of Regulation No 1215/2012 and are the basis for its settled interpretation. (75)
115. I shall examine the proposals separately, including in the first group the proposals put forward by the Netherlands Government, Stichting App Stores Claims and the Commission. In the second group, I shall review the proposals put forward by Stichting Right to Consumer Justice.
(a)    Place of establishment of the entity qualified to bring representative actions and the place where one or more of the victims may sue
116. The approach of taking into account the qualified entity’s place of establishment (for the purpose of lodging a representative action) separates the criteria for conferring international and territorial jurisdiction: the place of establishment is not the basis for international jurisdiction under Article 7(2) of Regulation No 1215/2012. Acceptance of that interpretation would give that provision the function of allocating cases between courts of the same jurisdiction, which is separate and distinct from the function of conferring international jurisdiction.
117. The proposal thus formulated would, first, create a
forum actoris
unconnected to the facts of the dispute and which, in addition, the applicant entity would be able to set strategically for each individual action. That risk would increase if the entity were created for the specific purpose of bringing a representative action, as sometimes occurs. Secondly, that proposal would confer jurisdiction on a court which the defendant could not have predicted before the dispute (76) (since the applicant entity, as such, did not suffer any damage) and
whose proximity to the defendant (77) is by no means guaranteed.
118. The Commission’s proposal (78) suggests that the entity which brings the representative action ‘could choose the court’, it being sufficient that that court has territorial jurisdiction in respect of at least one person or some of the persons forming the group whose interests that entity represents.
119. Expressed in those terms, the Commission’s proposal separates the allocation of international jurisdiction from territorial jurisdiction in Article 7(2) of Regulation No 1215/2012. It enshrines a forum actoris
which is set by the applicant as he or she wishes, subject only to the limitation
that it must be a place where, at least, one victim or a group of victims is entitled to lodge an individual action on the basis of the place where the damage occurred.
120. As regards the elements of the representative action that are not homogenous, the proximity between the designated court and the evidence is no more or less than that which any other court may have. As regards the elements which must be differentiated, proximity is certain only with respect to the party who has suffered the specific ‘harmful event’ which acts as the reference point for territorial jurisdiction. The same statements apply with regard to predictability for the defendant. (79)
121. Either of
those two proposals ultimately entails a significant alteration of the special rule of jurisdiction and, as a result, disrupts the balance of interests which the EU legislature established in Regulation No 1215/2012: this is something which, in my opinion, the interpreter is not authorised to do. (80)
122. Both proposals, while not appearing to rule out the designation of a court characterised by its connection to the dispute,(81) actually create new criteria for establishing territorial jurisdiction.
123. The underlying aim of those (new) criteria is the sound administration of justice, understood not as the ease with which evidence is obtained, assessed or heard but rather as the effective management in the proceedings of interests which overlap. Article 7(2) of Regulation No 1215/2012, as such, does not pursue that aim. (82)
(b)    Territorial jurisdiction of any Netherlands court or reference to domestic law
124. Stichting Right to Consumer Justice argues that, in the circumstances of the case, all Netherlands courts are equally competent to hear the representative action. In the alternative, Stichting Right to Consumer Justice proposes that the role of Article 7(2) of Regulation No 1215/2012 be limited to the determination of the court having jurisdiction
at international level.
125. I have already rejected, as paradoxical, an interpretation of the rule as meaning that it indiscriminately confers international and territorial jurisdiction on all courts of a Member State. (83)
126. The proposal that the decision on how to allocate territorial jurisdiction be devolved to the Member States is of greater relevance. If that proposal were accepted, it would be possible to continue using Article 7(2) of Regulation No 1215/2012 (it does not limit the applicant’s options to the courts for the defendant’s domicile) in situations, such as representative actions, which are not covered by Regulation No 1215/2012; it also removes the barrier to use of that procedural mechanism, whose use is encouraged by the EU legislature.
127. However, that proposal is at odds with the usual interpretation of the article, which is supported by compelling arguments. (84) Therefore, it is an option which should only be considered
de lege ferenda. (85)
D.      Question 1(c) and question 2(c)
128. The referring court asks whether ‘the application of national (procedural) law which allows referral to a single court within [a] Member State’ is precluded by Article 7(2) of Regulation No 1215/2012 in two situations:
–        where ‘not only one but several internal territorially competent courts are designated’ in that Member State (question 1(c));
–        where ‘an internal territorially competent court in the Member State concerned is designated which has jurisdiction only over the claims of some of the users in that Member State, while other territorially competent courts in the same Member State have jurisdiction over the claims of other users’ (question 2(c)).
129. Those questions may be hypothetical, in view of the fact that the actions against Apple were both brought before the same court (the referring court). (86) However, I do not rule out that the answer may be helpful to that court for the purpose of confirming its own jurisdiction.
130. The Court has held that Article 7(2) of Regulation No 1215/2012 ‘does not preclude a Member State from deciding to confer a particular type of dispute to a single court, which therefore has exclusive jurisdiction irrespective of where the damage occurred within that Member State’. (87)
131. The reason for that approach is that Regulation No 1215/2012 does not require that courts have to be established in the places where the harmful event occurred (88) and because the delimitation of the national courts’ jurisdiction is, as a rule, a matter for the organisational competence of the Member States. (89)
132. In particular, ‘the technical complexity of the rules applicable to actions for damages for infringements of competition law provisions may also militate in favour of a centralisation of jurisdiction’. (90)
133. In the light of those findings, I see no reason why Netherlands law should not provide
ex ante
that a single court will hear all representative actions for damages resulting from infringements of competition law.
134. However, it follows from the order for reference that that is not the rule in the Netherlands. What Article 220 of the Rv (91) appears to permit is that proceedings pending before different courts, in accordance with its rules of jurisdiction, may be joined, ex post, before the court which will hear the proceedings which were brought first.
135. That being so, the concentration rule does not join together cases before a single competent court within the court structure of a Member State (which is also specialised in relation to the subject matter) but rather before the court which was the first of a number of courts to be seised.
136. The aim of Regulation No 1215/2012 is not to harmonise the procedural law of the Member States but rather to determine which court has jurisdiction for disputes relating to civil and commercial matters. (92) However, the application of national procedural law must not impair the effectiveness of that regulation. (93)
137. In principle, a national rule which adjusts the outcome of applying Article 7(2) of Regulation No 1215/2012, by concentrating
ex post
before a single court proceedings which are pending before courts having jurisdiction under that provision, does not respect the effectiveness of Article 7(2).
138. Although the effects of the adjustment to the rule of jurisdiction may be reduced by the fact that it is made under the same national legal system, the fact is that the court seised of the second and subsequent actions will no longer be designated on the ground of its special geographical connection to each one.
139. The rule on the concentration of proceedings, in certain circumstances, may contribute to the sound administration of justice, construed as that which, inter alia: (i) optimises the conduct of proceedings; (ii) saves time and overall costs; and (iii) reduces the risk of inconsistent or contradictory judgments.(94) Regulation No 1215/2012 is not at odds with those aims. (95)
140. I do not rule out that those factors are present where parallel proceedings are the result of representative actions: in other words, as a rule, in those situations, the general interest in having a court structure which is as streamlined as possible may override the interests of the litigants in each individual case.
141. However, the mere fact that parallel proceedings are based on representative actions is not sufficient, by itself, to justify the concentration of those proceedings.(96) Accordingly, the interests referred to must be weighed up in each specific case by the national court in order to determine whether the concentration of proceedings is the best approach in terms of the sound administration of justice. (97)
V.      Conclusion
142. In the light of the foregoing considerations, I propose that the following replies should be given to the rechtbank Amsterdam (District Court, Amsterdam, Netherlands):
Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
must be interpreted as meaning that:
–        if, in a case involving the abuse of a dominant position which consists of charging commission on the price of apps offered for sale on an online platform specifically targeted at the whole of a Member State, the sale of those apps is accepted as the event giving rise to the damage, the place where that event occurred may be situated at the domicile of a user purchasing those apps, within that Member State;
–        the place where the damage occurred may be treated as the place
of domicile, within the market concerned, of a user who suffered the effects of the abuse of a dominant position, by paying an additional cost when purchasing the apps;
–        as EU law currently stands, the interpretation of Article 7(2) of Regulation No 1215/2012 does not differ where the action was brought by an entity which is qualified under national law to bring representative actions, which may include claims for damages, to protect, but not in name, the interests of multiple users;
–        the allocation of international and territorial jurisdiction to a court of a Member State, as a result of the application of Article 7(2) of Regulation No 1215/2012, is compatible with a national rule which permits a court to decline jurisdiction in favour of another court which is already seised of a similar action, where that rule contributes to achieving the objective of the sound administration of justice, a matter which it is for the referring court to determine.
1      Original language: Spanish.
2      The foundations Stichting Right to Consumer Justice and Stichting App Stores Claims (‘the applicant foundations’).
3      To refer jointly to Apple Inc. and Apple Distribution International Ltd (‘Apple Ireland’) I shall simply use the word ‘Apple’.
4      I shall use that expression as it is the one used in
Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ 2020 L 409, p. 1). As I shall explain below, that directive does not apply to the main proceedings.
5      Law on the settlement of mass claims in representative
actions (‘the WAMCA’).
6      Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).
7      What purchasers actually purchase are licences to use the apps.
8      Generally speaking, in this Opinion I shall refer to apps and in-app digital products using the generic term ‘apps’, in line with the referring court.
9      Order for reference, paragraph 4.9.
10      Order for reference, paragraph 4.12. At the hearing, Apple maintained, however, that the factor linking a user to a particular App Store is the selected payment method, which must be authorised for that store.
11      The foundation Stichting Right to Consumer Justice also alleges that Apple is responsible for a collusive arrangement, for the purposes of Article 101 TFEU (vertical price fixing). However, the referring court excludes the application of that article because the foundation has not explained which acts support the conclusion that there is a collusive arrangement (paragraph 6.10 of the order for reference).
12      Interlocutory decision of
16 August 2023, paragraphs 6.24, 6.25 and 6.35 to 6.37.
13      Judgment of
30 November 1976, Bier (21/76, EU:C:1976:166, paragraph 19). The reason for the division of the place of the harmful event into the ‘place of the event’ and the ‘place of the damage’
is because, otherwise, the fact that the former is usually the same as the defendant’s domicile would nullify the practical effect of the special rule of jurisdiction. Separation of the place of the causal event from the place where the damage occurred is not, therefore, a requirement for the interpretation of Article 7(2).
14      Judgments of
25 October 2012, Folien Fischer and Fofitec (C‑133/11, EU:C:2012:664, paragraph 46), and of 16 January 2014, Kainz (C‑45/13, ‘judgment in
Kainz’, EU:C:2014:7, paragraph 31).
15      Inter alia, judgment of
22 February 2024, FCA Italy and FPT Industrial (C‑81/23, ‘judgment in
FCA Italy and FPT Industrial’, EU:C:2024:165, paragraph 23).
16      Judgments of
19 September 1995, Marinari (C‑364/93, EU:C:1995:289, paragraph 18); of
16 May 2013, Melzer (C‑228/11, EU:C:2013:305, paragraphs 34 and 35); and of 10 March 2022, BMA Nederland (C‑498/20, ‘judgment in
BMA Nederland’,
EU:C:2022:173, paragraph 38).
17      Judgment in
BMA Nederland
(paragraph 38).
18      That rule may also enable overlapping with the law applicable to the substance of the case in accordance with EU law. The Court makes that overlapping, which it presents in a number of judgments as a requirement resulting from recital 7 of
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome
II) (OJ 2007 L 199, p. 40), a criterion for interpretation: see judgments of
9 July 2020, Verein für Konsumenteninformation (C‑343/19, EU:C:2020:534, paragraph 39), and of 15 July 2021, Volvo and Others (C‑30/20, ‘judgment in
Volvo’, EU:C:2021:604, paragraph 32). It should be recalled, however, that the parallel between the forum and the law is not a primary objective with regard to the interpretation of Regulation No 1215/2012, and that under no circumstances can coherence with the instruments on the applicable law lead to an interpretation of the provisions of Regulation No 1215/2012 that is alien to its system and objectives: judgments in
Kainz
(paragraph 20),
and of
3 October 2019, Petruchová (C‑208/18, EU:C:2019:825, paragraph 63).
19      That is, not relating to the parties to the proceedings. The fact that the place of the event giving rise to the damage is frequently the same as the defendant’s place of residence is a different matter; similarly, the place where the damage occurred is often the same as the injured party’s place of residence, with the result that the forum actoris must be permitted. Where the constituent elements of the event are not substantive, the Court has relied on personal factors to locate the event giving rise to the damage or the damage: thus, in the context of the internet, the Court took into account the victim’s centre of main interests, as the place where the damage occurred, in the judgment of
25 October 2011, eDate Advertising and Others
(C‑509/09 and
C‑161/10, ‘judgment in
eDate Advertising and Others’, EU:C:2011:685), or the place of establishment of the person committing the unlawful act, as the place of the event giving rise to the damage, in the judgment of
19 April 2012, Wintersteiger (C‑523/10, ‘judgment in
Wintersteiger’, EU:C:2012:220).
20      In the context of Article 7(2) of Regulation No 1215/2012, the identification of the sound administration of justice with the efficacious conduct of proceedings (as a result of the ease, resulting from the proximity between the designated court and the dispute, in obtaining and assessing the evidence of the constituent elements of the liability and the damage) is a constant: for example, judgments in
Kainz
(paragraph 27); in Wintersteiger
(paragraphs 31
to 33); of
24 November 2020, Wikingerhof (C‑59/19, EU:C:2020:950, paragraph 37); and in FCA Italy and FPT Industrial
(paragraphs 24
and 25).
21      For example, judgments in
eDate Advertising and Others
(paragraph 50); of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 56); of
17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766, paragraph 35); and
of 12 May 2021, Vereniging van Effectenbezitters (C‑709/19, EU:C:2021:377, paragraph 33).
22      See the references in footnote 21.
23      Judgment in Volvo
(paragraph 33).
24      Judgment in
Volvo
(paragraph 34).
25      Summarised in the Opinion of Advocate General Richard de la Tour in Volvo and Others
(C‑30/20, EU:C:2021:322, points 38
to 47).
26      Judgment of 5 July 2018, flyLAL-Lithuanian Airlines (C‑27/17, ‘judgment in
flyLAL-Lithuanian Airlines’,
EU:C:2018:533, paragraphs 51
and 52).
27      Order for reference, paragraphs 6.8 and 6.9.
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. I recognise that, depending on the circumstances, it may not be straightforward for users to locate that place. That difficulty does not appear insurmountable
to me: I refer in that connection to the judgment of
21 May 2015, CDC Hydrogen Peroxide (C‑352/13, ‘judgment in
CDC Hydrogen Peroxide’
EU:C:2015:335, paragraph 44).
29      Judgment of
27 October 1998, Réunion européenne and Others (C‑51/97, EU:C:1998:509, paragraph 33), on the place where damage occurs to goods while they are being transported by sea.
30      Judgment of
5 September 2019, AMS Neve and Others (C‑172/18, EU:C:2019:674, paragraph 51), with regard to
‘the place where the defendant took decisions and technical measures to activate a display on a website’ for certain goods. The judgment in
Wintersteiger (paragraphs 34
to 38) allowed that same criterion although it refused,
‘by reason of its uncertain location’, to define it as the place of the server, preferring the defendant’s place of establishment instead.
31      That fact, in my view, reveals Apple’s aim of targeting the country and not a generic Dutch community which could be dispersed across a number of States or even continents.
32      As the interlocutory decision of 16 August 2023, paragraph 6.24, appears to suggest.
33      Something which they are in practice obliged to do, given the difficulties involved in amending the ID once it has been set up. Using that business model, Apple fragments its activities by separating markets. By the same token, it makes it easy to identify the court with international jurisdiction and delimit its scope.
34      As a rule, the app is available moments after the user pays the price (increased by the commission).
35      They do not overlap completely and I therefore believe that it is possible to refer to a ‘location fiction’. An online purchase in App Store NL is also technically feasible for users who are resident in the Netherlands and who, having set that Member State as their country when they set up their Apple ID, are then temporarily located outside the Netherlands. It is also feasible for users who are not resident in the Netherlands who nevertheless set that Member State in their Apple ID. The order for reference does not cover those situations: it can be inferred from paragraphs 6.15 and 6.18, concerning the place where the damage occurred, that its focus is users who reside or are established (‘wonen of gevestigd zijn’) in the Netherlands.
36      The device provides the causal event with the material form that it lacks.
37      The situation involving multiple proceedings in respect of one act which
is, essentially, always the same would not differ in the case of tangible sales in physical shops (Apple Stores), but the potential for multiple proceedings would be much lower. In the Netherlands, for example, it appears that there are only three Apple Stores. In any event, that fact is circumstantial and cannot determine the approach to be adopted as a matter of principle.
38      Written observations of Stichting Right to Consumer Justice, paragraphs 69
to 75. In the alternative, in paragraph 76
it proposes limiting the scope of Article 7(2) of Regulation No 1215/2012, which only establishes international jurisdiction. In light of the difficulties which application of the provision presents in circumstances such as those at issue in the present case, that solution does not seem unreasonable to me. However, it is not compatible with the settled interpretation of the provision: see points 44 and 45 above.
39      Opinion in
Pinckney (C‑170/12, EU:C:2013:400, point 67).
40      It does not seem to me to be possible to infer otherwise from the judgments which, when interpreting Article 7(2) of Regulation No 1215/2012, or its predecessors, refer to the bringing of an action before ‘the courts’ of a particular Member State, as occurred in the judgment in
eDate Advertising and Others or the judgment in
Wintersteiger. The plural is also used in situations in which the interpretation of the criterion ‘place of the harmful event’ unquestionably leads to a single court within a territory, as occurs where that court is identified with the defendant’s place of establishment or with the victim’s centre of main interests: see, in addition to the aforementioned cases, judgment of
21 December 2021, Gtflix Tv (C‑251/20, EU:C:2021:1036, paragraph 30).
41      In that connection, see judgment of
11 January 1990, Dumez France and Tracoba (C‑220/88, EU:C:1990:8, paragraph 18).
42      Judgment in
flyLAL-Lithuanian Airlines
(paragraph 56). The location of the causal event in a single place is especially reasonable where the court designated as being the court for the place where that event occurred, on the basis of Article 7(2) of Regulation No 1215/2012, has full jurisdiction, in other words, has jurisdiction to decide on all the damage resulting from the unlawful acts and to adopt measures which are, by their nature, indivisible: see judgment of
17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766).
43      Unlike other types of claim, a claim for damages is divisible. That enabled the Court to develop the mosaic approach in the real world and apply it to the virtual world, using as a connecting factor the accessibility of information published online: judgments in
eDate Advertising and Others,
and of 21 December 2021, Gtflix Tv (C‑251/20, EU:C:2021:1036).
44      Judgment in
Volvo
(paragraphs 40
to 42).
45      That location is consistent with a commercial strategy which ‘seeks’ the public of a particular Member State. Furthermore, it takes account of the fact that use of the App Store requires acceptance of the terms and conditions of Apple’s multimedia services, which Apple itself defines as a contract and which includes a clause conferring jurisdiction on the courts of the user’s place of residence, to which I shall refer below at point 84.
46      The approach could give rise to different treatment of cases according to the medium used for the activity giving rise to the damage. However, it is likely that that already occurs in other areas, such as the infringement of personality rights. In accordance with the judgment in eDate Advertising and Others, regard must be had to the victim’s centre of main interests for the purposes of establishing the place where the damage occurred in cases where information is disseminated on the internet.
47      Judgment of
29 July 2019, Tibor-Trans (C‑451/18, EU:C:2019:635, paragraph 31). The complaint in that case concerned an infringement of Article 101 TFEU.
48      Judgments in
flyLAL-Lithuanian Airlines
(paragraph 40), and of 29 July 2019, Tibor-Trans (C‑451/18, EU:C:2019:635, paragraph 33).
49      Judgment in
Volvo
(paragraph 39).
50      Judgment in
CDC Hydrogen Peroxide
(paragraph 52), and judgment in Volvo, where the goods affected by collusive arrangements were purchased in different territorial jurisdictions (footnote 44 above).
51      That interpretation originally referred to the sale of vehicles fitted by their manufacturer with software which manipulated data relating to emissions of exhaust gases, and results from the judgment of
9 July 2020, Verein für Konsumenteninformation (C‑343/19, EU:C:2020:534), in conjunction with the judgment in
FCA Italy and FPT Industrial. Since the judgment in
Volvo
(paragraph 39) refers explicitly to the former, the place of purchase of physical goods subject to additional costs must be taken to be the place of delivery, even though those additional costs are not attributable to a material defect in the goods.
52      It is not even possible to talk about the ‘delivery’ of digital content in the strict sense; that content is made available online to the user, who can download it from any location by connecting to the internet.
53      Paragraphs 3.8 and 6.41 to 6.46 of the interlocutory decision of
16 August 2023. The examination of the jurisdiction clause included in Apple’s contracts with end users led the referring court to rule out the application of that clause to the claims at issue.
54      The judgment of
12 May 2021, Vereniging van Effectenbezitters (C‑709/19, EU:C:2021:377, paragraphs 38 and 39), dismissed a question on the subject on the grounds that it was hypothetical and, therefore, inadmissible. A foundation acting to protect a collective interest intervened in the proceedings which led to the judgment in
BMA Nederland. The Court categorised the damage to creditors as indirect and, therefore, irrelevant for the purposes of Article 7(2) of Regulation No 1215/2012. The Court also held that the foundation’s claim was irrelevant for those purposes because it was merely an intervener.
55      Judgments of
18 July 2013, ÖFAB (C‑147/12, EU:C:2013:490), and in
CDC Hydrogen Peroxide.
56      Judgment in
BMA Nederland.
57      Judgment of
1 October 2002, Henkel (C‑167/00, EU:C:2002:555).
58      Point 41 above.
59      In Austria, the law which governs representative actions (Paragraph 620 and
Paragraph 630 of the Verbandsklagen-Richtlinie-Umsetzungs-Novelle, BGBl. I, 85/2024) allocated exclusive jurisdiction for those actions to a single court. That is not the case in the Netherlands.
60      Among the characteristics defining the group of represented persons is the requirement that, one way or another, the members of the group must be holders of legal rights which have been infringed by an act carried out, or taking effect, in the territory over which the court before which the action is brought has jurisdiction.
61      Article 7(2) of Regulation No 1215/2012, in conjunction with the legislative option referred to in point 97. I am leaving aside, for the moment, the possibility of subsequently adjusting the determination of international or territorial jurisdiction.
62      Under Article 4
of Regulation No 1215/2012.
63      Recital 23 of the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM(2010) 748 final, and point 3.1 under the heading ‘Legal elements of the proposal’; and Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Towards a European Horizontal Framework for Collective Redress’, COM(2013) 401 final, point 3.7.
64      Point 107 below. A revision of Regulation No 1215/2012, which is currently under way, may include specific rules for representative actions.
65      As the Commission rightly states in its written observations, paragraph 10. The Netherlands Government, which suggested the contrary in its observations, adopted that view at the hearing.
66      The reason why I am discussing the directive, even though it is not applicable to the dispute.
67      Judgment of
2 May 2019, Pillar Securitisation (C‑694/17, EU:C:2019:345,
paragraph 35).
68      Determination of the exact terms of the relationship between Directive 2020/1828 and Regulation No 1215/2012 also necessitates consideration of the instruments of EU law referred to in Annex I
to that directive.
69      See footnote 59 above.
70      All those proposals refer to the need to maintain the practical effect of Directive 2020/1828. However, I do not see in them sufficient attention to how they fit with the approach taken in that directive. To give an example, taking into account the place of establishment of an entity qualified to bring a representative action creates a number of uncertainties in cross-border actions for the purposes of Directive 2020/1828: see Article 3(7) and Article 6.
71      Written observations of the Netherlands Government, paragraphs 3
and 13. It is unclear whether that interpretation applies to the place of the causal event or the place where the damage occurred. Stichting App Stores Claims puts forward a similar argument in relation to the place where the damage occurred (written observations, paragraph 3.1, in reply to question 2(a)).
72      Written observations of the Commission, paragraphs 81, 83 and 88.
73      Written observations of Stichting Right to Consumer Justice, paragraph 94.
74      Written observations of Stichting Right to Consumer Justice, paragraph 95.
75      See point 38 et seq. above. The Court does not shy away from location fictions when it interprets Article 7(2) of Regulation No 1215/2012. On the contrary, as I explained, it uses those fictions in situations where it is difficult to establish the harmful event as a result of the non-material nature of the act (event) or its consequences (the damage). In those circumstances, an intrinsic problem, linked to the nature of the connecting factor enshrined in the provision, precludes its application. The Court uses a location fiction guided by the principles underlying the provision.
76      In paragraph 19
of its observations, the Netherlands Government relies on an analogy with paragraph 42
of the judgment in Volvo
to put forward the opposite view. In its submission, the defendant will be aware of the place where the entity has its registered office, meaning that the possibility of being sued before the courts of that place will be predictable for it. The Netherlands Government adds that, where that entity is created in the Netherlands for the purpose of a specific debt, it must consult the defendant before commencing its action. I do not feel that it is necessary to explain that this is not the predictability to which Article 7(2) of Regulation No 1215/2012 refers. As regards paragraph 42
of the judgment in Volvo, that concerns international and territorial jurisdiction conferred on the court for the victim’s domicile, as representative of the place of the damage suffered as a result of the purchase by the victim of multiple material objects in various places. I do not see any possible analogy with the view put forward by the Netherlands Government.
77      More accurately, to the evidence which would make it possible to establish liability, the damage and the causal link, and to assess the damage.
78      At the hearing, the Netherlands Government stated that it could also support that interpretation.
79      According to the Commission (paragraph 86
of its written observations), an undertaking which offers goods and services in a particular territory must assume that it may be sued in that territory by buyers who consider that they have suffered damage. However, I believe that that general assertion does not support the argument that such an undertaking must necessarily assume that it may be sued, in respect of all damage caused by its activities to a number of victims, before any court situated on that territory, at the choice of a third party ex post facto: the risk to be taken into account is not the same, just as the conduct of the proceedings is not identical.
80      I refer to my Opinion in
Vereniging van Effectenbezitters (C‑709/19, EU:C:2020:1056, point 95).
81      See the text reproduced in footnotes 76 and
79. Neither the Netherlands Government nor the Commission examines the effects of the respective proposals in terms of proximity to the evidence, as though the fact that all potentially competent courts are situated in the same Member State were a sufficient guarantee in that regard. Stichting App Stores Claims simply argues that there is a close connection between the
rechtbank Amsterdam (District Court, Amsterdam)
and the case (paragraphs 2.13 of its written observations).
82      Without prejudice to what I shall state below: see points 139 and 140.
83      Point 66 above.
84      Points 44 and
45 above.
85      It is, in fact, a proposal which has significant academic support: see ‘The Reform of the Brussels I Regulation – Academic Position Paper’, endorsed by the European Association of Private International Law (EAPIL), available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4853421, p. 13.
86      This was pointed out by the Commission at the hearing.
87      Judgment in
Volvo
(paragraph 35).
88      By analogy, judgment of
18 December 2014, Sanders and Huber (C‑400/13 and C‑408/13, EU:C:2014:2461, paragraph 35).
89      Judgments in
Volvo
(paragraph 34), and of 30 June 2022, Allianz Elementar Versicherung (C‑652/20, EU:C:2022:514, paragraph 56).
90      Judgment in
Volvo
(paragraph 37).
91      Paragraphs 7.13 and 7.16 of
the order for reference focus on that provision of the Rv in relation to question 1(c)
and
question 2(c), and I am therefore following it.
92      Judgments of
15 May 1990, Hagen (C‑365/88, EU:C:1990:203, paragraph 17); of
31 May 2018, Nothartová (C‑306/17, EU:C:2018:360, paragraph 28);
and of 6 October 2021, TOTO and Vianini Lavori (C‑581/20, EU:C:2021:808, paragraph 68).
93      Judgments of
15 May 1990, Hagen (C‑365/88, EU:C:1990:203, paragraph 20), and of 18 December 2014, Sanders and Huber (C‑400/13 and
C‑408/13, EU:C:2014:2461, paragraph 32).
94      In principle, the contradiction in the circumstances of the present case occurs at national level. However, a judgment of one Member State, could, at least hypothetically, impede the recognition, in another Member State, of a judgment given in the former if that judgment were incompatible with another earlier judgment of that State, albeit a sensu contrario. The provisions of Chapter II, Section 9, of Regulation No 1215/2012, intended to promote ‘the harmonious administration of justice’, provide for the utmost reduction of the possibility of parallel proceedings and for the prevention of contradictory judgments in Member States (or, in certain cases, third countries).
95      The concern with improving the administration of justice in the way set out in the present Opinion, which is in the interests of parties and of society in general, is given specific expression in Regulation No 1215/2012: see Article 8
and the provisions of Chapter II, Section 9.
96      Intuitively, it is logical to suppose that the advantages associated with a representative action, as compared with an individual action, are maximised by grouping together all actions which relate to the same facts and the same defendant, or are connected to one another. In practice, however, it does not have to be that way. On the possible adverse effects of the joinder of connected actions, see, by analogy, judgment of
12 December 2024, Rada Nadzorcza Getin Noble Bank and Others (C‑118/23, EU:C:2024:1013, paragraph 74).
97      In that context, account may be taken of whether the actions concern matters in relation to which the (EU or national) legislature promotes the use of representative actions and, in particular, whether the concentration of proceedings contributes to achievement of the ultimate aims underlying the promotion of such actions.