Case C-47/25, Apple Distribution International – is a loot box a bet, and is the App Store a host?
The hosting safe harbour was written for a provider that stores what others upload. Apple reviews every app before it goes on sale. The Ondernemingsrechtbank Antwerpen asks whether that is still hosting — and whether the games at issue are gambling at all.
Facts
LS is suing Apple Distribution International Ltd before the Ondernemingsrechtbank Antwerpen over apps purchased through the App Store that contain loot boxes — in-game purchases with randomised contents. Belgium’s gambling regulator has treated loot boxes for money as games of chance requiring a licence. Apple’s defence rests on Section 4 of Chapter II of Directive 2000/31/EC, whose Article 14 provides that a service “consisting of the storage of information provided by a recipient of the service” is not liable for that information provided it “does not have actual knowledge of illegal activity or information” and acts expeditiously on obtaining it; paragraph 2 withdraws the protection “when the recipient of the service is acting under the authority or the control of the provider”. But Article 1(5)(d) of the Directive excludes from its scope “gambling activities which involve wagering a stake with monetary value in games of chance”. The referring court asks whether the safe harbour applies to gambling at all; if so, whether “gambling activities” is an autonomous Union concept; whether apps sold on the App Store are “information” that Apple “stores” for developers; whether Apple’s knowledge can be of a category of content (loot boxes) rather than of individual apps; and whether its app-review process means developers act “under the control” of Apple. Since February 2024 the same provisions govern platforms as Article 6 of the Digital Services Act, which the questions cite in parallel.
Questions Referred
1. a. Does Section 4 of Chapter II (Articles 12-15) of the Directive on electronic commerce (2000/31) apply to gambling activities, even though Article 1 5, third indent, expressly provides that that directive is not to apply to information society services consisting of gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transactions?
b. If so, must that concept of ‘gambling activities’ be interpreted in accordance with national law, or is it an autonomous concept of EU law (and, in that case, what are the relevant application criteria, and does the presence of certain elements in an app that satisfy those criteria mean that the entire app must thereby be regarded as a gambling activity)?
2. Is software offered for sale on an online platform such as the one at issue (the App Store) covered by the concept of ‘information’ within the meaning of those Articles 12-15 (and, therefore, is this sale covered by the concept of ‘storage of information provided by a recipient of the service’ in Article 14, now Article 6 of the Digital Services Act 2022/2065)? If so,
a. in order to determine whether the service provider has behaved as a diligent economic operator and yet is not aware of facts or circumstances from which the illegal activity or information is apparent [within the meaning of Article 14(1)(a), now Article 6(1)(a)], can account be taken of information relating to a category of content (here, loot boxes) which, hypothetically, is illegal in its entirety, or must the information reaching the service provider relate to well-defined, individual content?
b. does the process of approval of apps offered in the App Store imply that the recipient buys those apps under the control of the service provider, within the meaning of Article 14(2) (now Article 6(2) [of the Digital Services Act])?
Sources
OJ notice C/2025/2359 (EUR‑Lex) · Case file on CURIA · Directive 2000/31/EC · Regulation (EU) 2022/2065
Comment
The first question is a trap for Apple and the second is a trap for the safe harbour. If loot boxes are “gambling activities”, then by Article 1(5)(d) the Directive — safe harbour included — does not apply to them, and Apple’s defence disappears before it is examined. Apple therefore needs loot boxes not to be gambling, which is a position its own Belgian regulator does not share and which, if “gambling activities” is a Union concept, the Court would have to define for the first time. Question 1(b)’s closing limb shows how far the point reaches: if a game contains an element that is gambling, is the whole game excluded from the Directive? A yes would take a large share of the mobile games market outside the e-commerce framework in every Member State that regulates loot boxes.
The second question is the one that will be read beyond gaming. Article 14 protects a provider that stores information “provided by a recipient of the service” and does not apply “when the recipient of the service is acting under the authority or the control of the provider”. The App Store is a curated marketplace: nothing is listed without Apple’s review, and Apple sets the terms, takes a commission and controls the payment. Question 2(b) asks whether that review process places developers “under the control” of Apple for the purposes of Article 14(2) — which would remove the safe harbour without any need to show knowledge. The Court’s “active role” case law under Article 14 has so far concerned optimisation and promotion of listings; an approval gate is a different and stronger form of control, and the Court has never said whether pre-screening content is compatible with hosting. The answer will apply equally to Article 6 of the DSA, whose text is materially identical, and so to every app store, and to any platform that moderates before publication rather than after.
Question 2(a) is narrower but matters for enforcement. If a provider can be fixed with awareness of illegality at the level of a category — “loot boxes are illegal in Belgium” — rather than of a specific app, then a regulator’s general position becomes constructive knowledge of every instance, and the notice-and-takedown model turns into a duty to screen. The Court has resisted general monitoring obligations consistently, and this may be where Apple gets its best answer.