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High Court ruling allows disclosure of analysis prepared in damages action to the European Commission


On 17 December, the High Court published a judgment of Roth J granting Foundem permission to disclose its analysis of documents disclosed by Google in proceedings before the High Court to the European Commission.

Foundem operates a price and product comparison shopping website. Foundem is claiming damages for the losses that it has suffered as a result of alleged anti-competitive conduct on the part of Google.  There is an overlap between Foundem’s allegations in the High Court and the issues being considered in the European Commission's ongoing investigation into alleged breach of EU competition law by Google. Google has denied the allegations. 

Following a disclosure order, Foundem prepared an analysis of documents disclosed to Foundem by Google that had already been provided to the European Commission as part of its investigation. Having previously provided that Analysis to Google, Foundem applied for permission to send the Analysis to the Commission (redacting any reference to documents that had not been supplied by Google to the Commission).

The High Court has granted permission for Foundem to send its Analysis to the Commission on the basis that there is an important public policy interest in proceedings before a national court being consistent with proceedings before the Commission, in particular since the High Court would be bound by any infringement decision that the Commission may ultimately take. Such consistency meant that the Commission should not be prevented from hearing arguments based on consideration of the same evidence. In so ruling, Mr Justice Roth rejected the submission that to allow Foundem to provide its Analysis to the European Commission would inappropriately place it in a better position than other complainants before the European Commission, noting that the difference in Foundem’s position resulted from the fact that it had commenced proceedings before the national court and there was no suggestion the national proceedings had been commenced for an improper purpose. Mr Justice Roth further considered that Google would not be prejudiced by the disclosure of the analysis.

This case adds to the growing case-law on the management of private actions under competition law where there continue to be parallel proceedings before the European Commission.

The judgment is here.

Helen Davies QC and David Bailey appeared for Foundem instructed by Hausfeld & Co LLP.

Robert O’Donoghue appeared for Google instructed by Bristows LLP.