The Relevance of Qualified Entities in Apple Nederland Store

On 2 December 2025, the Court of Justice gave its ruling in Apple Nederland Store (case C-34/24), on the interpretation of Article 7(2) of the Brussels I bis Regulation in cases regarding infringements of cartel law. A first comment on the judgment, by Burkhard Hess, was published on this blog the day after the judgment itself was rendered. Geert van Calster also analysed the ruling in his blog. The issues raised by Apple Nederland Store are further explored in two posts published in the EAPIL blog today.

The post below is the first in the series. The author is Jorg Sladič, a practising lawyer in Ljubljana, a former référendaire at the Court of Justice of the European Union, and an assistant professor at the European Faculty of law in Ljubljana and Catholic institute in Ljubljana (Slovenia). He is a co-author of a textbook on private international law of the European Union in Slovenian (Mednarodno zasebno Pravo Evropske unije, Ljubljana, 2018). His book ‘US Class Actions and European Models of Collective Redress Proceedings’ will be published by Springer in 2026.

The second contribution to the symposium on Apple Store Nederland, by Gilles Cuniberti, can be found here. As with all other on-line symposia offered through the EAPIL blog, readers are encouraged to share their views by comment on the posts. Those willing to submit guest posts, are encouraged to get in touch with the editors at blog@eapil.org. 

That evil day has come where the first meaningful judgment on private international law (the term used due to lack of a better term) and collective redress has been given by the Court of Justice (CJEU) in case C-34/24, Apple Store Nederland.

As far as terminology is concerned, in the USA and in most common law legal orders class action is used instead of the European term collective redress. The ELI/UNIDROIT Model Rules of European Civil Procedure use the term collective proceedings, in the EU the term used is also representative action.

Private international law (conflict of laws and conflict of jurisdictions) and collective redress cannot easily co-exist. Private international law means fragmentation caused by several legal orders, collective redress (nowadays called also representative action in the EU or collective proceedings in the ELI/UNIDROIT Model Rules) on the other hand requires uniformity and a judicial ‘one stop shop’ (the same solution for the whole mass harm situation). We might observe the development of complexity of lawsuits. American scholars have already observed that ‘problems of civil procedure that are daunting enough in ordinary litigation often assume nightmarish proportions when they arise in class actions’ (Wood, ‘Adjudicatory Jurisdiction and Class Actions’, Indiana Law Journal, 62 (1987), 597). In Canadian case-law we read: ‘Cases involving class actions raise unique jurisdictional challenges’ (Airia Brands Inc. v. Air Canada), para 69). If one adds conflict of laws and conflict of jurisdictions to the already daunting problems, the nightmare even becomes stronger.

Until very recently there was a general impression that collectivisation (as in representative actions litigated under national implementation measures of the  Representative actions Directive, or RAD) and Brussels I bis were irreconcilable, as stated by the CJEU in C-498/16, Schrems:

Article 16(1) of Regulation No 44/2001 [corresponding to Article 18 of the Brussels I bis Regulation] must be interpreted as meaning that it does not apply to the proceedings brought by a consumer for the purpose of asserting, in the courts of the place where he is domiciled, not only his own claims, but also claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member countries.

The CJEU followed his advocate general. According to the latter, the Brussels I Regulation

does not provide specific provisions on the assignment of claims or procedures for collective redress. This (presumed or real) lacuna has long been debated by the legal scholarship, which has expressed the view that the regulation is an insufficient basis for cross-border EU collective actions. The application of the consumer forum in cases of collective action is the object of heated debate (Opinion of Advocate General Bobek, C-498/16 Schrems, para 121).

As far as collective redress is concerned, there are no differences between the old and the new Brussels regulation. This opinion follows the common opinion in private international law according to which traditional connecting factors in one-on-one lawsuits are not fit or suitable for collective redress. Instead of recognition of US class actions (see, e.g., prof. Voet’s report on recognition of a US class action settlement in Belgium in the Lernout & Hauspie case), we have been faced with a rather technical issue of the scope of exceptional heads of jurisdiction in Brussels I bis in collective redress (or representative actions as the RAD puts it).

The issue at stake is the scope of forum actoris where qualified entities (or any other lead plaintiffs in US class actions or in international legal writing ideological or collective party according to Mauro Cappelletti) litigate in a collective lawsuit in Apple Store Nederland.

Prof. Hess already published a convincing analysis of the said ruling on this blog. While prof. Hess correctly and convincingly put the emphasis on a very peculiar interpretation and application of the exceptional nature of Art. 7(2) of the Brussels I bis regulation, scholars of collective redress eagerly awaited the ruling. There appears to be a direction in development of private international law and collective redress where traditional connecting factors and heads of jurisdiction get a new and different interpretation in collective redress. While the exceptional head of Article 7(2) Brussels I bis requires a traditional interpretation of exceptiones sunt strictissimae interpretationis, the CJEU recognised the problem of collective redress where the ‘supraindividual and perhaps even public interests’ to use a term used to describe qualified entities is at stake (Rechberger, Simotta, Grundriss des österreichischen Zivilprozessrechts, 9th edn, Manz 2017, p. 354).

Qualified Entities and Standing

While we might not always agree with prof. Hess’s reasoning that Dutch Foundations do not operate as ‘qualified entities’ under the RAD as the CJEU referred to WAMCA i.e. the Dutch legislation on collective redress, he correctly characterised legislating from the bench (judex in modo legislatoris), identified and exposed a conflict between collective redress and private international law that is also coming to the EU. However, the question might be whether the traditional restrictive approach frustrating the RAD and the interpretation put forward by Apple should be retained in this case (para 21 of the ruling)?

A different approach might help to understand the ruling in Apple Store Nederland according to which the exceptional nature of qualified entities (ideological or collective party) shall be the main guidance in collective redress. EU collective redress is litigated by a qualified entity for a represented harmed group.

The victims of a mass harm situation (same illegal practices relating to the violation of rights granted under Union law by one or more traders or other persons) form the represented group and are not litigants themselves. In Apple Store Nederland the CJEU uses the term ‘an entity qualified to defend the collective interests of multiple unidentified but identifiable users’.

The qualified entity is not a legal subject harmed by the mass harm situation, it is not a victim whose right would be infringed and has as such no personal interest in bringing proceedings for claiming damages (it is litigating uti cives).

The standing and interest in bringing proceedings of qualified entities are created entirely ex lege and are different from traditional one-on-one lawsuits (Jorg Sladič, Part XI Collective proceedings, paras. 19.035 and 19.154, in: Stadler, Smith, Gascón Inchausti, European Rules of Civil Procedure, A Commentary on the ELI/UNIDROIT Model Rules, Edward Elgar, 2023). Applied to general private international law this means that in case of collectives or ideological parties there

appears to be the territorial limitation of the authorisation to bring collective proceedings. The qualified claimant in any other collective redress than injunctive is in principle given standing solely on the territory of the state having adopted the qualified proceeding order. In injunctive collective redress the qualified claimant is given standing by the law or the administrative act of that state. However, the jurisdiction to adjudicate and the jurisdiction to enforce are strictly territorial. As a consequence, qualified claimants can only litigate before courts in the states where they were authorised to bring proceedings (Sladič, op. cit., para. 19.154).

In the EU the situation is quite different due to so called cross-border collective redress. The issue at stake is the standing and interest of the qualified entity and the interest of victims harmed by a mass harm situation.

This might explain the CJEU’s reasoning in para 64 of Apple Store Nederland according to which

As is apparent from the request for a preliminary ruling, under Netherlands law, a foundation or association which brings a representative action acts as an independent promoter of the interests of persons who, although not referred to individually, have similar interests. Those applicants thus exercise their own right, namely the right to represent and defend the collective interests of a ‘strictly defined group’ which brings together unidentified but identifiable persons, namely users, whether consumers or professionals, who have purchased apps created by developers on the App Store NL to which those persons had access by means of their Apple ID associated with the Netherlands and whose domicile or registered office is likely, for the majority of those users, to be located throughout the territory of that State.

The approach of the qualified entity as the collective or ideological party litigating uti cives for ‘multiple unidentified but identifiable users’ is accepted by the CJEU. If such an approach is accepted, then the interpretation of Article 7(2) of the Brussels I bis in traditional lawsuits is clearly ill suited for this case. Legislating from the bench in order to comply with the principle ubi ius, ibi remedium seems to be the only feasible (re)solution.

In the EU the limitation of standing of qualified entities to the territory of a single EU Member State has been avoided by so called cross-border collective redress regulated by the Article 4 RAD. According to recital (23) of the RAD where a qualified entity brings a representative action in a Member State other than that in which it is designated, that representative action should be considered a cross-border representative action. It is well known that the European Commission considers the lack of standing of qualified entities from one Member State in other Member States as a discriminatory act and requires ‘cross-border collective redress’.

However, the CJEU appears to have avoided the interpretation of the RAD by interpreting the Brussels I bis Regulation (as it was asked to by the Dutch judex ad quem) in such a way that the effet utile of legislation on qualified entities litigating uti cives in defending the interests of ‘multiple unidentified but identifiable users’ is emphasised. In other words, there appears to be a deliberate judicial action towards new interpretation of existing rules on (direct) international jurisdiction in order to favour cross-border collective redress. The classical re-interpreting of direct international jurisdiction in class actions is also coming to the EU.

Should the ruling in Apple Store Nederland be deemed a final nail in the coffin of cross-border collective redress under Article 4 RAD as the emphasis is not any longer on standing of qualified entities in collective redress litigated abroad in different Member States of the EU?

The discussion after Apple Store Nederland is now focused on heads of jurisdiction under Bussels Ibis allowing the forum actoris in collective redress. One might ask why create special conditions of admissibility allowing qualified entities to stand abroad in collective redress litigation in other Member States by Article 4 of the RAD only to see the heads of jurisdiction in Article 7(2) of the Brussels I bis Regulation extended to qualified entities?

The answer is that cross-border collective redress is quite a rare occurrence in praxi. Will qualified entities from Sweden engage in litigation in Greece only in order to comply with the actor sequitur forum rei under Article 4 of the Brussels I bis regulation? No economically sound litigant would do it. Or from the other point of view: will a Greek qualified entity litigate in Portugal? The answer is the same.

As far as this author is aware, there are only two cases reported of cross border collective redress. One was decided by the Belgian Court of Cassation some 20 odd years ago on cross-border collective injunctions litigated by the qualified entity British British Office of Fair Trading as a foreign government agency under EU consumer protection Directives. This litigation case ‘was the first ever cross-border court action in Europe to stop a trader in one country sending misleading advertising to consumers in another’ (Office of Fair Trading, Annual Report 2005–06, p. 8; Belgian Cour de cassation, judgment of 2 November 2007, Case C.06.0201.F., Sladič, op. cit., para. 19.172). The second was decided by the Rechtbank Breda in the Netherlands. The British Office of Fair Trading as a qualified entity from (then) another EU Member State, as a foreign government agency, had standing in a representative collective lawsuit under the then version of Art. 3:305a BW (Dutch Civil Code) in the Netherlands. The Rechtbank Breda ordered a Dutch company to stop sending misleading e-mails, advertisement and commercial letters to UK citizens (Rechtbank Breda, judgment No 170463 of 9 July 2008). Both cases are old, it might be difficult to apply them to modified legislative framework such as Brussels Ibis regulation, Rome I and II Regulations and the RAD. However, as the RAD as the lex generalis of collective redress in the EU was adopted in 2020 it is still premature to speak of death of cross-border collective redress. There might be some new developments in cross-border collective collective redress in the Iberian Peninsula as reported by professors Maria-Jose Azar-Baud and Miguel Sousa Ferro at a conference on collective redress on 7 and 8 April 2025 in Budapest.

Canadian Experience

Foreign experience in resolving the question of how to anchor direct international jurisdiction would be more than welcome. Certain foreign laws such as Canadian law already found the answer of how to anchor such jurisdiction by reinterpreting and extending the heads of jurisdiction. Canada applies since 1985 (Libman v. The Queen) a connecting factor (also) in tort cases called real and substantial connection test in individual and collective tort cases that is not known in the EU. We might report an one-on-one case in Club Resorts Ltd. v. Van Breda). The Canadian Supreme Court ruled, e.g., in Society of Composers. The said connecting factors was already reported by prof. Van Calster.

There appears to be no fundamental rule of jurisdiction in tort cases in Canada comparable to Art. 7(2) of the Regulation Brussels I bis. Nevertheless, the said Canadian connecting factor was extended from criminal cases  to civil cases and then to Canadian class actions by way of judicial re-interpretation ‘The real and substantial connection test has been a dominant, although not exclusive, test governing the issue of jurisdiction’ (Airia Brands Inc. v. Air Canada, para 52) The process of reinterpretation appears to be the main issue at stake also in Apple Store Nederland. We see a similar development as in Canada also at the CJEU. What is more, the development leading to a reinterpretation on both sides of the Atlantic is collective redress (or class actions).

However, in Canadian case-law on class actions we read:

Cases involving class actions raise unique jurisdictional challenges.  Unlike traditional litigation, which consists of an identifiable plaintiff actively selecting a jurisdiction and hence consenting to the jurisdiction, class actions involve at least one identifiable representative plaintiff and frequently unidentified members of a larger class. Typically in litigation, the question is whether the Ontario court has jurisdiction over a defendant, not whether it has jurisdiction over [absent foreign claimants].  Indeed, the purpose of class actions is, in part, to confer a benefit on absent class members. It is difficult to reconcile class actions that include unidentified claimants with traditional approaches to jurisdiction. In those circumstances, a real and substantial connection on an individualized basis may be elusive.  To allow for jurisdiction, either the members must be identified and present or consent to jurisdiction or there must be another doctrinal mechanism available to anchor jurisdiction.’ (Airia Brands Inc. v. Air Canada, para 69).

This point may also be construed in such a way that connecting factors known in traditional one-on-one lawsuits are ill suited to be applied in collective redress.

Commonality Test

I am in no way trying to imply that Canadian case-law contains better law than EU law. We might simply repeat what prof. Van Calster said some years ago: Airia Brands shows that the concerns are far from settled. The issue in anchoring international jurisdiction in collective redress has already been explored by legal writers (Saumier, ‘Transborder Litigation and Private International Law: the View from Canada’, in Cafaggi and Micklitz (eds.), New Frontiers of Consumer Protection – the Interplay Between Private and Public Enforcement, Intersentia, 2009, p. 361 at 369). If the Canadian legal formant is identified: in collective redress international jurisdiction shall be established with respect to the defendant and the representative’s plaintiff claim, then we get a solution that is also applied by the CJEU in the second part of the dispositif in Apple Store Nederland. Indeed,

any court having substantive jurisdiction in that State to hear a representative action brought by an entity qualified to defend the collective interests of multiple unidentified but identifiable users … has international and territorial jurisdiction, on the basis of the place where the damage occurred, to hear that action with regard to all those users.

That EU solution is not far away from the Canadian one. The setting of connecting factors in collective redress appears to be heavily influenced by characteristics of collective redress. On the other side of the Atlantic commonality is used to describe one of the prerequisites of class actions. ‘commonality itself [as the main characteristics of class actions] supplies the real and substantial connection sufficient to assert jurisdiction over non-resident class members’ (Monestier, ‘Personal Jurisdiction over non-resident Class – Members: Have We Gone Down the Wrong Road’, Texas International Law Journal, 45 (2010), 537 at 538). Commonality in the Apple Store Nederland case was described by the term ‘multiple unidentified but identifiable users who have purchased digital products’.

The CJEU did not mention the commonality test expressis verbis. However, at paras 67 and following, it argued that:

67. … the fact that it is impossible to determine, for each person alleged to be the victim of anticompetitive conduct, the place where the damage occurred, within the meaning of Article 7(2), does not mean that that provision does not apply. … in this case, that place corresponds to a well-defined geographical area, namely the whole of the territory to which the market affected by the relevant anticompetitive conduct belongs, with the result that it is not impossible to identify that place, which could, where appropriate, justify the application of the general criterion of jurisdiction laid down in Article 4(1) of Regulation No 1215/2012, namely that of the defendant’s domicile …

68. It follows from the foregoing that, in situations such as those at issue in the main proceedings, any court having substantive jurisdiction to hear a representative action brought by an entity qualified to defend the collective interests of multiple unidentified but identifiable users will have international and territorial jurisdiction, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to hear that action in its entirety. …

71. As regards the objective of proximity between the court seised and the subject matter of the dispute, it should be noted that the specific features of the representative actions in the main proceedings lead, in essence, to a situation where the court called upon to hear those actions is required to examine the existence of the alleged damage in relation to the strictly defined group consisting of unidentified but identifiable users who have suffered the same type of damage, resulting from anticompetitive conduct implemented throughout the territory concerned. [emphasis added] …

72. That conclusion also satisfies the requirement of predictability, in that it enables both the applicant and the defendant to identify the courts having jurisdiction. As regards, in the present case, Apple Distribution International, in so far as the App Store NL targets specifically the Netherlands market, it is predictable that a representative action for damages in respect of purchases made on that platform will be brought before any Netherlands court having substantive jurisdiction.

That said, a lesson to be drawn from comparative law in relying on the sufficient commonality as the real and substantial connection blurs the limits between the merits and the jurisdiction. Jurisdiction depends on the commonality, which itself depends on an early assessment of the merits (Monestier 2010, p. 550).

A EU criterion of a group consisting of unidentified but identifiable users who have suffered the same type of damage is the functional equivalent of the commonality in legal orders where the US class action was transplanted. The simplicity of that criterion is that it completely avoids the discussion on the place of damage and goes towards the place of the harmed group (or absent class members represented by the qualified entity) for anchoring the jurisdiction.

We cannot yet say that the EU would abandon the connecting point of the place where the harmful event occurred or may occur. However, the commonality is added to that criterion by reference to objective proximity. The EU criterion also requires due to objective proximity an in-depth assessment of isomorphic claims of ‘absent class members’ (passive group members) already in the stage of determining international jurisdiction. As a consequence, the commonality is both the connecting factor in allocating the jurisdiction to adjudicate and the criterion of efficiency in collective redress (a condition of admissibility, see e.g. Rule 212 of the European Rules of Civil Procedure).

The general conclusion is that collective redress required an adaptation of traditional heads of jurisdiction in collective redress in order to grant jurisdiction to the court of the place of damage. That adaptation in the EU has been performed by the CJEU acting in modo legislatoris.

In the end, traditionally there was always a fear in European Academia that in collective redress even fora in EU Member States could ‘bind absent class members without having jurisdiction over them’ and thus infringe upon the effet utile of Brussels I bis Regulation (see, in the US, Winters, ‘Jurisdiction over Unnamed Plaintiffs in Multistate Class Actions’, California Law Review, 73 (1985), p. 181(182)). However, this case involves a very unfavourable solution for a corporate defendant. Therefore the traditional fear of a lack of protection of absent class members (group consisting of unidentified but identifiable users who have suffered the same type of damage) was avoided.

Corporate defendants react to unfavourable rulings, we might à titre d’exemple refer to Volkswagen who appears to require in its general terms and conditions an ex ante renunciation by consumers of any alternative dispute resolution scheme (Hirsch, ‘Verbrauchergerechte Sammelklagen? Zur Schnittstelle von kollektivem Rechtsschutz und außergerichtlicher Streitbeilegung, Zeitschrift für Konfliktmanagement, 2019, p. 68). We might see in next years the large corporate defendants setting up a defence against the ruling in Apple Store Nederland by various restrictions and limitations of their general terms and conditions referring to the use of digital goods precluding the consumers and in fine the qualified entities to claim jurisdiction under Art. 7(2) of the Regulation Brussels Ibis. In the US class action waivers in general terms and conditions are used. The EU solution will be different, as such waivers will not be accepted in the EU (see the terms referred to in Article 3 (3), term 1(q) of the Council Directive 93/13 of 5 April 1993 on unfair terms in consumer contracts).