By decision of 16 January 2025, the Enterprise Court of Antwerp (the “Court”) refers several prejudicial questions to the Court of Justice of the European Union (the “CJEU”) regarding the possible liability of Apple for offering and promoting a game featuring loot boxes in its App Store. The Court deemed that the offer on the App store and promotion by Apple of this game, which it qualifies as a game of chance, violates the Belgian law on games of chance. The prejudicial questions raised by the Court relate to Apple’s defense of immunity as a hosting service provider under the Directive 2000/31/EC (the “e-Commerce Directive”). The response of the CJEU is likely to affect the interpretation of the safe harbour liability exemptions provided under the DSA (Regulation 2022/2065), as it will among others rule on the notion of “neutrality” of the intermediary service provider and the threshold for “knowledge or awareness” of illegal content.

The plaintiff is claiming damages against Apple on the grounds that a game including loot boxes was made available and promoted on its App Store in Belgium. Such a game qualifies under Belgian law as a game of chance and, hence, the offer and promotion thereof requires a license under the Belgian law on games of chance, which have not been obtained in this case. The damages claimed correspond to the amount of +/- 70.000 EUR spent by the plaintiff on these loot boxes. The developer of the application is not a party to the proceedings – the plaintiff is only suing Apple as intermediary service provider.

From the decision, it appears that the DSA was not yet applicable at the time of the relevant facts – instead the e-Commerce Directive and its Belgian transposition apply to the facts at issue. Although the decision concedes that the DSA essentially “developed and made more explicit” the safe harbour provisions of the e-Commerce Directive (such that the DSA itself and its preparatory material are useful in interpreting the e-Commerce Directive), it also highlights differences between the instruments. As a result, the Court deems it necessary as a first step to refer prejudicial questions to the CJEU to ascertain (i) whether gambling activities are excluded from the scope of application of the e-Commerce Directive (as the European Commission has provided a diverging interpretation on this issue, and given that the DSA does not exclude gambling activities from its scope of application), (ii) whether the notion of “gambling activities” should be interpreted as an autonomous concept of EU law and (iii) whether “software” should be considered as “information” in the sense of the e-Commerce Directive (such that Apple’s App store would qualify as a hosting service provider of “the information stored at the request of a recipient of the service” and thus could claim the safe harbour liability exemption). 

More interestingly, the Court then moves to determine whether the provision of Apple’s App store service meets the requirement of the safe harbour liability exemption, including “neutrality” in the provision of the service and knowledge of the illegal activity or information at hand: 

1. The Court highlights Apple’s “extensive process of reviewing apps that developers submit to it for distribution through the App Store. This process is subject to detailed guidelines from Apple itself, and can sometimes involve interactions with the developer, with repeated revisions between the developers and Apple’s own reviewers before final approval of an app” and refers a question on the compatibility of this practice with the requirement of “neutrality” under both the e-Commerce Directive and the DSA as its successor. The question itself is phrased by reference to the possibility that the app developer would be “acting under the authority or the control” of Apple – which would preclude the application of the safe harbour under Article 14(2) e-Commerce Directive (now Article 6(2) DSA). 

Interestingly, we note that the Court does not explicitly cite article 7 of the DSA (the “Good Samaritan” clause), pursuant to which “voluntary own-initiative investigations into, or (…) other measures aimed at detecting, identifying and removing, or disabling access to, illegal content, or (…) necessary measures to comply with the requirements of Union law and national law in compliance with Union law” cannot preclude the applicability of the safe harbour liability exemptions. In any case, the outcome of this question may be relevant for any actor whose hosting platform includes guidelines or review processes prior to publication of the content.

2. The Court then turns to assessing whether Apple had knowledge of the illegal information (i.e., the game/application) provided on its App store, such that it would have been subject to an obligation to remove the application expeditiously. From the outset, the Court determines that the illegality of loot boxes such as the ones at issue in this case is general knowledge in Belgium, a fortiori for such a major tech actor as Apple. However, the Court considers that there is no clarity on the nature and threshold of the knowledge required by the safe harbour provisions (e.g., is a formal notification required, must there be a judicial decision, or is general knowledge of the situation sufficient taking into account the market position of the service provider – in essence, is actual knowledge required or does constructive knowledge suffice), despite the CJEU’s judgments in the L’Oreal (CJEU, C-324/09) and Cyando cases (CJEU, joined C-682/18 and C-683/18). 

In that context, the Court refers a prejudicial question to the CJEU on whether, under both the e-Commerce Directive and the DSA as its successor, concrete knowledge of the illegality of the individual content (i.e., the actual game/application) is required – beyond general knowledge of the illegality of loot boxes – to trigger an obligation for Apple to remove the application expeditiously. It remains to be seen whether the CJEU will merely reiterate its previous case-law or will provide additional insight into business practices which trigger knowledge in the sense of the safe harbour.

Full decision available here (in Dutch): https://juportal.just.fgov.be/JUPORTAwork/ECLI:BE:ORANT:2025:JUG.20250116.1_NL.pdf