Price comparison companies seeking damages against Google say the European Court of Justice’s Google Shopping ruling has given their cases a much-welcome leg-up.
Kelkoo’s chief executive Richard Stables told GCR today that the ECJ’s confirmation that Google abused its dominance in the comparison shopping market has boosted the company’s follow-on claims in the UK.
“If you get a judgment from a case like this, you’ve effectively proved abuse and you’ve proved dominance,” he said, adding that it’s like being “30-love up in a game of tennis,” with only causation and quantum left to demonstrate to the court.
Steve Thomas, general counsel at Kelkoo, added that the ruling “takes the brakes off” the litigation, which had slowed down pending the ECJ’s judgment.
“We’ve been driving along slowly with the brakes on, the brakes come off now and we can get on with it,” he added.
Foundem co-founder and chief executive Shivaun Raff noted that the company’s complaint triggered the EU’s investigation back in 2009 – so “unsurprisingly there is a great deal of overlap” between the EU’s decision and its civil claim for damages.
“The downside was that this meant that our claim was essentially stalled pending the outcome of Google’s various appeals,” she told GCR. However, the “significant upside” is that the European Commission decision is now binding on national courts – including in the UK, she added.
Kelkoo and Foundem are both advancing follow-on damages claims in the UK against Google, stemming from the commission’s decision in 2017 which slapped Google with a €2.4 billion fine after concluding that it used its search practices to leverage its dominance in the comparison shopping market.
Yesterday, the ECJ put an end to Google’s appeals against the decision, confirming the agency’s conclusion that Google anticompetitively self-preferenced its own specialised results in Search, whilst simultaneously demoting rivals’ results.
Kelkoo and Foundem’s claims are being jointly case managed by the Competition Appeal Tribunal alongside separate claims by Kelkoo subsidiary Whitewater Capital and Connexity, known collectively as the “UK Shopping Proceedings”.
A case management conference is scheduled for 18-19 November to iron out timetabling matters ahead of a preliminary issues hearing expected early next year.
Thomas said Kelkoo’s immediate aim is to conclude the case as quickly and efficiently as possible. Stables also emphasised that Kelkoo will remain “very engaged on the regulatory side” in both the UK and the EU to improve competition in the market.
“If we have a playing field that is fair, we think we can thrive and do really well in it,” Stables said. “So we’ll be spending a lot of time on that.”
Kelkoo and Foundem have long criticised Google’s self-preferencing practices, with the former previously accusing the tech giant of “decimating” its business.
“It’s Google’s world, and we’re living in it,” Stables said today. “The only reason that we’re surviving is because regulators have woken up to the fact that, to have functioning markets, you need competition.”
Foundem boss Raff said that one of the “most frustrating aspects” of the previous fifteen years has been “the extent to which we have been constrained to rebutting Google’s disingenuous and unsustainable defensive arguments behind closed doors.”
Foundem is “very much” looking forward to airing how harmful the tech giant’s search manipulation practices are in open court – “and why their insidious effects reach far beyond the confines of comparison shopping,” she added.
Google was contacted for comment.