Announcements — 15/04/2024

Geradin Partners act in win over Apple jurisdiction challenge

Geradin Partners is pleased to announce that Dr Sean Ennis, successfully defended Apple’s applications for a partial strike out of his claim that Apple breached competition law by charging UK-domiciled app developers an excessive and unfair “commission” – typically 30% –  for transactions made through the App Store. On 25 July 2023, Dr Ennis filed an application in the Competition Appeal Tribunal (the “Tribunal”) on behalf of a proposed class of UK-domiciled app developers under the UK’s opt-out collective proceedings regime for breaches of competition law.

Apple challenged the Tribunal’s jurisdiction to hear part of the case related to commission charged on transactions effected via the Non-UK App Store Storefronts, bringing the following applications:

1.For an order that the Tribunal lacks, or alternatively declines, jurisdiction over the proposed opt-out collective proceedings against Apple insofar as they concern commission charged on transactions effected via the Non-UK Storefronts;

2.For an order striking-out ,alternatively entering reverse summary judgment upon, the proposed opt-out collective proceedings against Apple’s UK entitled in respect of commission on transactions taking place through Non-EU Storefronts. That is on the grounds that the conduct complained of could not amount to a breach of Article 102 Treaty of the Functioning of the European Union (as retained in the UK following Brexit) (“TFEU”) and/or section 18 of the UK’s Competition Act 1998.

3.For a variation of the order permitting Dr Ennis to serve relevant documents on the Non-UK Proposed Defendants by an alternative method of service and at an alternative place.

On 12 April 2024, the Tribunal unanimously ruled that all three of Apple’s applications should be dismissed, in the following judgment 16017723 Dr Sean Ennis v Apple Inc and Others – Judgment (Jurisdiction & Service Out) [2024] CAT 23 12 Apr 2024.pdf (catribunal.org.uk). 

The Tribunal found that that Dr Ennis has a realistic prospect of successfully establishing that the claim is governed by UK law and of establishing that Apple’s conduct falls within the territorial scope of Article 102 TFEU and/or section 18 of the Competition Act 1998. This includes transactions effected via Non-UK App Storefronts because these are either: (i) implemented in the EU/UK or (ii) foreseeable that it would have an immediate and substantial effect in the EU/UK.

This case sets an important precedent for UK business users when establishing jurisdiction of the Tribunal to hear claims for damages against globally operating platforms like the App Store. The Tribunal can be the appropriate forum for such cases, including where it concerns sales made by those UK business users to consumers based abroad.

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Damien Geradin

(+32) 471 17 95 25

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