Are competition law disputes subject to Apple's general jurisdiction clauses?

Advocate General Wahl's opinion of 5 July 2018 in case C-595/17, Apple v MJA as liquidator of eBizcuss.com

By senior intern Sebastian Willigenburg Andersen and assistant attorney Kristine Langgaard Stage

The proceedings before the national courts

The now bankrupt company eBizcuss was formerly recognised by Apple as distributor of Apple products in France. In April 2012, eBizcuss sued Apple before the French courts, claiming that Apple was guilty of anti-competitive behaviour and unfair competition because the company had been favouring their own distributor network to the detriment of eBizcuss since 2009.In the opinion of eBizcuss, Apple's opening of their own stores had resulted in such losses to the other distributors that it constituted abuse of a dominant position.

Apple and eBizcuss had agreed a jurisdiction clause in their distributor contract. According to the general clause, Irish courts would have jurisdiction to settle any dispute arising from the contract that gave rise to legal proceedings initiated by eBizcuss against Apple. Accordingly, the question for the French courts was whether this general jurisdiction clause meant that the French courts did not have proper jurisdiction and therefore had to reject the case.

The commercial court and the court of appeal in Paris both rejected the case with reference to the agreed jurisdiction clause. However, the court of cassation and the court of appeal in Versailles disagreed and referred to case back to the commercial court in Paris. In the opinion of the court of cassation and the court of appeal in Versailles, Article 23 of the Brussels I Regulation (which allows jurisdiction clauses) should be interpreted so as to mean that an agreed jurisdiction clause can only be taken into consideration in competition law disputes if it explicitly refers to disputes concerning liability resulting from a breach of the competition law, and that the wording of the jurisdiction clause agreed between Apple and eBizcuss was therefore too broad to cover the relevant dispute.

Opinion of the Advocate General

The court of cassation referred the question about interpretation of Article 23 to the European Court of Justice for a preliminary ruling. The Court of Justice has not yet issued a ruling, but on 5 July 2018 Advocate General Wahl submitted an opinion in the case.

It is Advocate General Wahl's opinion, firstly, that a dispute based on non-compliance with the rules on abuse of a dominant position does not in principle prevent the applicability of a jurisdiction clause. Consequently, Article 23 does not per se prevent the use of a jurisdiction clause.

Secondly – and most importantly – Advocate General concludes that it is not necessary to explicitly refer to disputes concerning liability resulting from non-compliance with competition law rules in order for a jurisdiction clause to apply to such disputes.

Where a jurisdiction clause refers to "disputes arising from the contract", it is therefore for the national courts to determine whether the dispute has the required closeness to the contract. However, it is no problem in this regard if the contract does not explicitly, according to its wording, cover disputes subject to the competition law rules on abuse of a dominant position.

If the European Court of Justice follows the Advocate General's opinion, the French court will have to determine whether the dispute's closeness to the contract between eBizcuss and Apple is sufficient for the dispute to be covered by the jurisdiction clause. This will require an individual assessment, because according to Advocate General Wahl, as mentioned, Article 23 of the Brussels I Regulation does not prevent a general jurisdiction clause from applying to competition law disputes.

Read the Opinion of the Advocate General (in Danish).