Apple (C-595/17): ECJ on jurisdiction clauses and private enforcement: “Multinationals, go ahead and abuse your distributors”?

October 2018

CPI EU News Column edited by Thibault Schrepel, Sam Sadden & Jan Roth (CPI) presents:

Apple (C-595/17): ECJ on jurisdiction clauses and private enforcement: “Multinationals, go ahead and abuse your distributors”? By Miguel Sousa Ferro (University of Lisbon)¹

Essential Facts

Apple’s distribution network in Europe is organized through agreements signed between its Irish subsidiary and resellers in each Member State. These agreements include a jurisdiction clause according to which: (i) the reseller must submit any disputes about “this agreement and the corresponding relationship between the parties” to the Irish courts; and (ii) Apple can choose between Irish courts, the courts of the reseller MS, or any jurisdiction where Apple suffered harm.

In this case, a former French reseller of Apple’s (succeeded by its liquidator) sued it in France, for abuse of a dominant position. It argued it was a victim of discrimination, with Apple’s own network stores receiving unjustified better conditions.

The 1^st and 2^nd instance courts found the jurisdiction clause valid and the Irish courts exclusively competent. The 3^rd instance court invoked the CJEU’s judgment in CDC Hydrogen Peroxide and reversed the decision. In the subsequent re-decision of the case, the French court, informed of a ruling on the same clause (in similar circumstances) by the Portuguese Supreme Court, concluding Portuguese courts did not have jurisdiction,² asked the CJEU for clarific