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 1st and 2nd instance courts found the jurisdiction clause valid and the Irish courts exclusively competent. The 3rd 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 clarifi…

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