CJEU considering liability of App Store providers for unlawful loot boxes

The question

Should intermediary service providers (eg app stores) be held liable for the supply of games containing unlawful loot boxes to consumers in breach of local gambling legislation? 

The key takeaway

The Court of Justice of the European Union (CJEU) will provide clarity as to whether Apple could be liable for the inclusion of in-game loot boxes via its app store without appropriate licensing, in violation of Belgium’s gaming laws.

The background

The popular in-game feature of the “loot box” (described by The Gaming Commission as “game elements that are incorporated into a video game, whereby the player - whether or not for payment - acquires game items in a seemingly random manner”) has long been scrutinised by EU regulators and commentators due to their similarities to gambling.

In 2018, the Belgian Gaming Commission raised eyebrows when it classified the use of loot boxes in Overwatch, FIFA 18 and Counter-Strike as “games of chance” in its Research Report on Loot Boxes, bringing them within the scope of the regional Gaming and Betting Act 1999. A game of chance in this context requires four components: (1) an element of play, (2) a stake, (3) a chance of winning or losing, and (4) chance. Given that the loot boxes met these requirements, yet none of the licenses required under the Act had been obtained, the Commission ordered that the games’ active operators revise the games into compliance or face criminal prosecution and significant fines.

In January 2023, this regulatory scrutiny in the wider EU culminated in the European Parliament adopting a report that called for harmonised EU rules in order to afford greater protections to online video game players.

The development

Fast forward to 2025 and the Antwerp Enterprise Court has heard the case of LS v Apple where it has been asked to consider: (1) the classification of loot boxes as games of chance; and (2) whether Apple, acting as intermediary service provider, might benefit from immunity under the “safe harbour” provisions of the e-Commerce Directive, where it is accused of facilitating access to loot boxes via its app store, despite qualifying as a game of chance and not being licensed as such.

The claimant (Mr LS) had an acknowledged gambling problem and allegedly spent tens of thousands of euros purchasing loot boxes in Top War: Battle Game over the course of 10 months. He sought these sums as damages of €67,813.03 plus a provisional amount of €20,000 from Apple on the basis that he should not have been able to purchase these loot boxes via the app store in Belgium as they were in breach of Belgian gambling legislation. The Chinese developer of Top War is not party to the proceedings.

The Antwerp Enterprise Court has since referred several points to the CJEU for clarification, including:

• whether the safe harbour provisions of the e-Commerce Directive apply to gambling activities
• whether the concept of gambling activities should be defined under national law, or is it an autonomous concept of EU law
• whether the presence of elements that would satisfy the criteria of a gambling activity would mean the entire app is a gambling activity
• whether software available for purchase via platforms such as Apple’s app store qualifies as “information” under Articles 12 – 15 of the e-Commerce Directive (and whether such a purchase falls within the concept of “storage of information provided by a recipient of the service” under the e-Commerce Directive’s successor, the Digital Services Act), and
• whether Apple’s app review and approval process impacts its “neutrality” for the safe harbour provisions.

Why is this important?

The CJEU’s responses to the questions posed by the Antwerp Enterprise Court will have wide-reaching consequences, not only providing binding commentary on the classification of loot boxes, but critically addressing the liability of intermediary service providers (like app stores) in relation to the games made available via their platforms where those games involve non-compliant loot boxes.

The decision will also influence the interpretation of the Digital Services Act, which replaced the e-Commerce Directive in 2022, despite the former not being in force at the time of the events in question.

Any practical tips?

Publishers and platforms alike should remain live to potentially inbound changes around the use of loot boxes in online games and the risks of getting this wrong in Belgium (and more widely across the EU).

It will also be crucial to implement robust monitoring and removal procedures for content featuring loot boxes in countries where they are prohibited. Preparing for the worst-case scenario by pre-emptively obtaining necessary licenses, will help mitigate risk and excessive costs associated with rushed redevelopment of non-compliant games. Gaming platforms should also consider proactive steps, such as implementing clear terms of service and quick response systems to complaints to avoid escalation to litigation.

Spring 2025