You’re right, lots of armchair lawyering going around here.
I used to be one, specialized in EU law no less, but then I traded people who show up with poorly Googled statutes in for me just Googleing code.
Nevertheless, I’ll add some more of my own armchair lawyering from the Hasbin region, all the rest is just sparkling armchair lawyering.
Contracts often include a jurisdication clause.
Private international law allows for this and more specifically for the EU,
Rome I allows for this and honors it except in very narrow instances. There are some general exceptions in the form of consumer protections, but those don't apply in B2B contracts.
The Apple Developer Program License Agreement (ADPLA), contains such a clause in §
14.10. It used to exclusively select the Northern District of California as their choice, but recently they've added Ireland in §14.10(d) as well for most cases arising out of a "European Relationship", with an explicit carveout for IP-related matters.
This change is presumably made to comply with Article 5(6) of the DMA which requires gatekeepers to allow parties to bring matters before a national court in the EU when it pertains to non-compliance with the DMA. The newly added clause that selects Ireland is a bit broader than that, but I suppose Apple's lawyers felt generous when they changed it.
So on the matter of jurisdication, as far as it pertains to "European Relationships" anyways, Irish courts would have jurisdications. But that doesn't have much relevance for this debate.
First and foremost, the DMA does not force business relationships and this notion that the DMA requires Apple to provide access to Epic (or anyone for that matter) without condition. I'm goin to need a citation for that.
In fact, throughout the DMA it's very clear that requiring an agreement has the EU's stamp of approval. Specifically Article 6(12) clearly states that the gatekeeper is allowed to set conditions of access, as long as they're fair, reasonable and non-discriminatory.
Still, the bigger question is if there even is a valid contract. While the US has slowly moved away from the hard requirement of a meeting of the minds under the subjective theory of assent in favor of objective manifestations of asssnt, European courts are still hardcore subscribers to the original meaning of consensus ad idem.
There's also a component in which it would be weighed if it was reasonable for Epic to assume Apple willingly entered into a contract with them, considering the history.
Apple would only have to assert that they didn't intend to enter into a contract with Epic, which can be further supported by the fact that Epic was kicked out of the ADPLA and that Apple has insisted at (and had been granted by). the California court that they should be able to sever all ties with Epic and affiliates.
Even worse, Apple can argue that Epic tried to deceive Apple by setting up a different entity with a name and address details other than what was known to Apple and has plugged those details into a (semi-)automated process to get a developer account in an attempt to bind Apple to an agreement they don't want.
European courts are not in the business of forcing people into contracts with one another and it's pretty likely that this new contract would be void. At the very least it would be considered a continuation of and directly related to the California case and European courts would simply defer to the court in the Northern District of California. Not in the least because that court's ruling affects affiliates as well, meaning it also covers this new entity.
In short, this whole thing is another Epic gambit and isn't going anywhere.
You're right. Apple clearly stated in the emails shared by Epic that it was because of their prior breach of contract and that the current pontificating by Sweeny about the new contract they wanted to enter in, worries them if they'd adhere to the terms of the contract.
As stated above, that could be the case and happens quite often. Also the other way around by the way. This is by design to facilitate international trade.
Did you pick this up watching Better Call Saul or something? It would be more helpful if you'd put more effort into understanding the matter at hand before opining on it.
Civil law cases don't aim to make "corrective" or punitive actions. Their primary purpose is to remedy a wrong. Standing relates to if you have sufficient connection to the matter at hand to be able to participate in a case. You don't have a right to create standing to get "relief" or a "corrective action".
If no negotiation is possible, then you have two options:
1. If you like the terms of the contract you can enter into it
2. If you don't like the terms, you don't enter into the contract
That's not a catch-22, that's just life.
In fact, entering into a contract under a false premise has implications on mutual assent, which could lead to the contract being deemed void.
There's a whole slew of other issues that come up as well with your kind of bad faith mentality. If you like looking up stuff I'd suggest you look into things such as the "clean hands doctrine", "estoppel by silence" and "laches". For Europe, since they don't do estoppels (not counting UK), "Nemo potest venire contra factum proprium" is a great thing to look into to get eased into this rabbit hole.
Alternatively you can just read what the Northern District of California and the Ninth Circuit had to say about Epic's masterplan to purposefully breach contract. I'll give you a spoiler: standing had nothing to do with it.
ETA: If just standing is you main concern: Epic would still have standing even if they didn't break the contract, if there would've been an actual injury that is. You don't need to break a contract for that and often, like in this case, it will work against you if you break the contract instead of going to court.
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