On 27 May 2025, the Court of Appeal in The Hague ruled that the Dutch court lacks jurisdiction over the class action brought by Stichting Massaschade & Consument (SMC) against Airbnb. This affirms an earlier decision by the District Court of The Hague. Therefore, the court does not consider whether Airbnb’s longstanding business model—charging double service fees to both tenants and landlords—is justified. More than 50,000 consumers took part in the collective action.
Airbnb is established in the European Union. This means the question of whether the Dutch court has jurisdiction in this case is determined based on the Brussels I-bis Regulation. It is clear that the Dutch court cannot establish jurisdiction from the primary rule of Article 4 of the Brussels I-bis Regulation, which is the defendant’s place of residence, because Airbnb is based in Ireland.
Article 7(1)(b) Brussels I-bis
Does the Dutch court have jurisdiction in this case under Article 7(1)(b) of the Brussels I-bis Regulation? This provision provides an alternative jurisdiction for contractual obligations to the court where the obligation related to the claim was or should be performed.
SMC argues that the place of performance is not Ireland, where only platform management occurs, but the Netherlands. This is because the digital services are tailored for and target Dutch users. The website is in Dutch, Dutch consumers can pay via the Dutch payment system iDEAL on the platform, Airbnb applies Dutch VAT to service fees, and several employees based in Amsterdam focus on the Dutch market.
In the Court of Appeal’s view, Airbnb’s main service is connecting tenants and hosts by listing accommodations on its online platform. The operation and management of Airbnb’s platform are carried out in Ireland by its employees there, which supports Airbnb’s claim that the primary service is performed in Ireland.
Choice of forum clause
SMC also invoked the forum-selection clause agreed to by consumers and Airbnb, as set out in Article 22 of the Terms of Use. According to this provision, the consumer contracting with Airbnb can file any claims against Airbnb in the court of their own residence.
According to SMC, it is not decisive whether SMC itself agreed to the forum selection or if it can be classified as a consumer. SMC is the formal party in the proceedings, while the affected consumers are the substantive parties and are also bound by any judgment. Therefore, SMC should be considered a “consumer” under Article 22 of the Terms of Use. The Dutch court has jurisdiction under the forum-selection clause in Article 25 of the Brussels 1-Bis Regulation.
Airbnb contends that the Dutch court lacks jurisdiction over SMC’s claims under the forum selection clause. This clause states that only consumers can bring claims against Airbnb in their local courts. SSMC is not a consumer and not a party to these agreements. The Court of Appeal agrees with Airbnb on this point.
Article 7(2) Brussel I-bis
Finally, SMC asserts that the Dutch court has international jurisdiction under Article 7(2) of the Brussels I-bis Regulation. SMC contends that Airbnb unlawfully incorporated unreasonably burdensome and illegal clauses into its terms and conditions, allowing the company to be summoned to court where the harmful act occurred or could occur. SMC explains that this applies to an obligation arising from an unlawful act that involves breaching a legal duty.
According to the Court, SMC’s claims involve contractual obligations, and interpreting the agreement is needed to decide whether Airbnb’s alleged conduct is lawful or unlawful. This rules out the possibility that the claims relate to obligations from an unlawful act. Therefore, the Dutch court does not have international jurisdiction to hear SMC’s claims under Article 7(2) of the Brussels I-bis Regulation.
Comment
What is remarkable about this judgment is that individual consumers who complain about Airbnb can go to the Dutch court, but once consumers unite in a collective action, they are redirected to Ireland – a country where no effective system for collective actions exists. Of course, a claim organization is only formally the plaintiff. It defends the interests of individual consumers who cannot go to court due to the prohibitive costs of litigation.
If the country where the platform is managed is considered the location where the service is provided under contracts, multinationals can easily avoid collective actions by establishing themselves in a country like Ireland, where pursuing collective action is difficult. Since it is unrealistic to expect individual consumers to file relatively small claims in their own national courts, multinationals can continue their practices without repercussions.
With this ruling (following Airbus), the District Court and the Court of Appeal of The Hague strengthen their reputation as the most WAMCA-unfriendly courts in the Netherlands.
