A Different Reading of Apple Nederland Store
On 2 December 2025, the Court of Justice of the European Union rendered its judgment in case C-34/24, Apple Store Nederland. The case was already commented on this blog by Jorg Sladic this morning as well as by Burkhard Hess a few weeks ago, and by Geert van Calster on his blog.
Both Burkhard and Geert are quite critical of the judgment, that they think amounts to legislating from the bench.
I only partly agree with them.
International Jurisdiction
If one focuses on international jurisdiction, Apple Store Nederland is, in my opinion, unsurprising, because, as I have already noted elsewhere, it was an easy case.
The CJEU rules that Dutch courts have jurisdiction because the damage occurred in the Netherlands. As all readers know, the court has ruled since 1976 that Article 7(2) grants jurisdiction to the court of the place of damage. The only issue was to determine the place where the damage was suffered in a case concerned with a website overcharging customers. This is not obvious, because this all happens on the internet (‘the virtual space’), but the Court rules that, in that case, it could be considered that the damage occurred in The Netherlands, because the relevant website (Apple Store Nederland) was focused on that country. It offered ‘apps for sale to users with an Apple ID associated with the Netherlands’. As a consequence, the victims were ‘likely’ to have their domicile or registered office in the Netherlands.
In other words, the CJEU rules that, in this case, it was ‘likely’ that all victims were residents in the Netherlands with an Apple ID associated with the Netherlands. It deduces from these facts that the damage was suffered in that country. True, the CJEU does not require proof that each of the victim did suffer damage in the Netherlands, but it suggests that this can be assumed in the present case. This is not the strictest possible interpretation of Article 7(2), but I would not say that this amounts to a dramatic departure of the rule.
Obviously, the case would have been much harder if the App Store had not been focused on a single country but, precisely, it was.
Domestic Territorial Jurisdiction
For its critiques, the real problem with the judgment is its impact on domestic territorial jurisdiction. The CJEU rules, in Geert’s words:
Dutch foundations can consolidate their collective claim in just one court in The Netherlands, despite the absence of a clear ex ante procedural rule in Dutch civil procedure providing for same.
And this, according to Burkhard and Geert, is unacceptable lawmaking from the CJEU.
Well, I must say that I have a hard time following this argument. The critical issue, it seems to me, is rather why, in the first place, the CJEU has ruled that the Brussels I bis Regulation is relevant at all in determining domestic territorial jurisdiction. The Brussels I bis Regulation is an instrument of international civil procedure. It should determine whether the courts of one Member State or another have jurisdiction. But how can the interference with domestic jurisdiction be justified in the light of the subsidiarity principle?
The CJEU has justified it on the difference in language between some provisions of the Regulation, which refer to ‘the courts of the Member State’, and others which refer to ‘the Courts of the place of …’ I have to say I am not impressed by this reasoning. Can subsidiarity really depend on such a formalistic argument?
But if you accept that the Brussels I bis Regulation interferes with domestic jurisdiction, how can you complain about a further extension such as the one suggested by the CJEU? This is certainly legislating from the bench, in violation of the subsidiarity principle, but it has started quite some time ago.
Seems fine. But from a broader perspective: Does it make sense to request from a plaintiff to be aware of the opposing parties’ activities on the internet? This is just totally un-practical and non-protective for the injured party.
The problem lies not so much with the CJEU as with the Dutch legislature, which has not done its job, so that the Dutch judge is reduced to appealing to the CJEU.
Is the different reading a better reading of the CJEU’s judgment? I am not convinced by the arguments of Gilles Cuniberti for the following reasons:
The historical lawmaker of the 1968 Brussels Convention (BC) had a clear concept of former article 5 (now article 7 of the Regulation Brussels Ibis – JR). This concept was explained by the Jenard Report (OJ EC 1979 C 59/22) as follows:
“By adopting ‘special’ rules of jurisdiction, that is by directly designating the competent court without referring to the rules of jurisdiction in force in the State where such a court might be situated, the Committee decided that a plaintiff should always be able to sue a defendant in one of the forums provided for without having to take the internal law of the State concerned into consideration. Further, in laying down these rules, the Committee intended to facilitate implementation of the Convention. By ratifying the Convention, the Contracting States will avoid having to take any other measures to adapt their internal legislation to the criteria laid down in Articles 5 and 6. The Convention itself determines which court has jurisdiction.
Adoption of the ‘special’ rules of jurisdiction is also justified by the fact that there must be a close connecting factor between the dispute and the court with jurisdiction to resolve it. Thus, to take the example of the forum delicti commissi, a person domiciled in a Contracting State other than the Netherlands who has caused an accident in The Hague may, under the Convention, be sued in a court in The Hague. This accident cannot give other Netherlands courts jurisdiction over the defendant. On this point there is thus a distinct difference between Article 2 and Articles 5 and 6, due to the fact that in Article 2 domicile is the connecting factor.”
As we can see in this quote, the Jenard Report explained the double function of article 5 BC (addressing both international and territorial jurisdiction) by explicitly referring to an example leading to the territorial jurisdiction of the Dutch courts. The 1978 Schlosser Report confirmed this approach. The position has been undisputed over 50 years. Therefore, it appears difficult to pretend that the Regulation is primarily an instrument addressing “international jurisdiction – not in article 7 JR.
Recently the CJEU itself reaffirmed this double function of article 7 JR on in case C-30/20, Volvo, para 29. In this case, AG de la Tour had explicitly referred to both the Jenard and Schlosser Reports (Conclusions, para 46). Obviously, the Grand Chamber in Apple Store wanted to make a move away from an established practice. Here I disagree again with Gilles Cuniberti: this practice entails a different lawmaking than simply interpreting and deveolping further article 7 JR. It openly contradicts the express will of historic lawmaker.
I am criticising the lacking judicial self-restraint of the Grand Chamber – the judges were aware of the ongoing lawmaking activities of the EU Commission to address article 7 no 2 JR in the context of collective redress – the Conclusions of the AG Campos Bordóna-Sanchez (ignored by the Court) had explicitly referred to this ongoing debate. This judgment transgresses the usual standards of judicial self restraint in the context of judicial cooperation in civil and commercial matters.
From a political perspective, expanding the Brussels I regime to collective redress has become an urgency but the respective legislative steps require a lot of circumspection. In Apple Store Netherlands, the judges did not give due deference to the ongoing debate but preferred giving unilateral preference to one (the Dutch) of several models of collective redress currently applied in the EU-Member States. This limited perspective is an additional weakness of the judgment.
To my opinion, this decision cannot amount to a “grand arrêt” of the CJEU in civil and commercial matters but must be considered as a political one favouring the practice of one EU Member State without considering the larger situation of collective redress under the EU Collective Actions Directive and of collective redress in general. In the upcoming recast of the Brussels Ibis Regulation, the judgment deserves a thorough review regarding its consequences on the different implementing laws of Regulation (EU) 1828/2020 in the EU Member States. It is not excluded that the EU lawmaker will correct unilateral and adverse consequences of this judgment.
We certainly have a different view of the role of the CJEU and the dynamics between the legislature and the judicial power in the EU. I think that the current evolution of the EU law of jurisdiction into domestic jurisdiction, including regulating purely domestic cases (see Inkreal) owes much more to the CJEU than to a mysterious legislative intent written in stone by Mr Jenard half a century ago.
More importantly, my view of the respective roles of the legislature and the court differs from yours in two respects.
The first is that I do not have the same faith in the legislative process. This legislative process can simply fail, for a number of reasons (the most important being maybe the influence of lobbies), and reforms be abandoned. The fate of the proposal of a regulation on the assignment of claims is the most recent example. If the legislative process fails, it is at the very least acceptable for the court, and indeed possibly its duty, to step in. Is it inconceivable that corporate Europe would want to derail proposals for reform on collective redress…?
The second is that the CJEU is not a constitutional court. Its rulings on the Brussels I bis regulation can be undone by the legislature. Doing so would not be an offence to the court, but the normal legislative process.
And finally, I would even submit that the ruling of the court, in a context where legislative reform is on the agenda, may actually facilitate law reform. This is because the participants in the legislative process, including those who would prefer to come back to the situation prior to the ruling, would know that, in the absence of legislative reform, the ruling of the court would apply.