Two group litigants have sued Apple before the Amsterdam district court, seeking compensation on behalf of millions of Dutch consumers who suffered from the restrictive way Apple manages the purchase of apps on its devices. They base their stand-alone claims on a violation of Article 102 TFEU, i.e. abuse of a dominant position of Apple’s App Store.
Apple disputed jurisdiction of the Amsterdam court, arguing that jurisdiction cannot be based on Article 7(2) of the Brussels I bis Regulation (No. 1215/2012), because the harmful event did not occur in the Netherlands. Alternatively they posited that the harmful event could not be located in the Amsterdam district with regard to consumers residing in other parts of the Netherlands. Given that Article 7(2) controls not only international jurisdiction, but also the territorial jurisdiction of courts within Member States, Apple maintained that there is no basis for jurisdiction of a single court for the entire case.
The district court had referred this matter to the Court of Justice of the European Union (CJEU). Yesterday, Advocate General Campos Sánchez-Bordona delivered his opinion. In his view the Handlungsort and Erfolgsort are in the jurisdiction of the place of the victim, resulting in Article 7(2) jurisdiction of the court of its district. This interpretation would not allow a court to assume jurisdiction with regard to the entire group, unless the Member State would have designated one court for such group actions. However, the Advocate General also observes that nothing in the Brussels I bis Regulation would bar the various courts to subsequently transfer the case to a single court where a case is already pending, if they consider this approach to serve the sound administration of justice.
In other words, if a group litigant (the ‘WAMCA Foundation’) would want to bring a case on behalf of millions of consumers in an efficient way, it would have to initiate proceedings in each district court in the Netherlands for the consumers residing within that district, and then request that these cases be referred to one single district court. Foundations are expected to follow this cumbersome procedure to consolidate the WAMCA case in Amsterdam. One would hope that the legislature, in evaluating the WAMCA, will decide to establish the exclusive jurisdiction of the Amsterdam court to facilitate such actions. That said, the CJEU may of course offer a different solution than the Advocate General to ensure that such nationwide cases are not divided between all courts. The only party to benefit from this spread, after all, is the defendant.
