Unlockd Ltd & Ors v Google Ireland Ltd & Ors (Rev 1)

Permission to serve proceedings out of the jurisdiction requires a serious issue to be tried, a good arguable case within a jurisdictional gateway, and England and Wales to be the proper place for the claim.

EU competition law may apply to conduct implemented outside the EU where the conduct has a foreseeable, immediate and substantial effect in the EU. A single global policy does not, by itself, bring conduct affecting non-EU markets within that territorial scope. Indirect financial consequences for an EU business, through reduced intra-group funding, are too remote to constitute an immediate effect. An injunction gateway cannot support relief governing conduct wholly outside the jurisdiction.

Wholly owned subsidiaries lacking real autonomy from their parent form a single undertaking, so arrangements between them cannot infringe Article 101 TFEU.

The claimants brought proceedings alleging breaches of Articles 101 and 102 TFEU and corresponding provisions of the Competition Act 1998. They sought permission to serve the third defendant, a Delaware company based in California, outside the jurisdiction. The claim concerned Google’s proposed suspension of access to the Play Store and AdMob for applications incorporating the claimants’ product in the UK, the United States and Australia.

The first and second defendants accepted the jurisdiction. The third defendant accepted jurisdiction in relation to conduct implemented in the EU, but contested jurisdiction over the US and Australian aspects of the claim. The issues were whether those aspects raised a serious question to be tried, fell within the relevant gateways in Practice Direction 6B, and should be tried in England.

1. Permission and Article 102. The court granted permission to serve the third defendant in relation to the alleged refusal or suspension of access to the Play Store and AdMob for apps in the EU. The conduct was implemented in the EU by the first and second defendants, whose policies were materially determined and applied by the third defendant. There was therefore a serious question to be tried against all three defendants.
2. Territorial scope. The implementation test, recognised in Woodpulp I EU:C:1988:447, and the qualified effects test confirmed in Intel Corp v Commission EU:C:2017:632, provide alternative bases for EU competition-law jurisdiction. The qualified effects test requires a foreseeable, immediate and substantial effect in the EU.
3. A global policy and a single decision did not make the US and Australian refusals actionable under Article 102. Unlike Intel, the conduct did not prevent the development or manufacture of a product intended for the EU market. Each Unlockd company independently sought access to Google’s services in its own market. The reasoning in Iiyama [2018] EWCA Civ 220 was distinguishable because that was a follow-on claim involving cartelised goods ultimately purchased in the EU.
4. The alleged reduction in intra-group funding caused by losses in the US and Australia was too remote to be an immediate effect in the EU. The relevant claims therefore did not raise a serious question to be tried under Article 102.
5. The injunction gateway in Practice Direction 6B could not support a worldwide mandatory injunction merely because some conduct occurred in England. The necessary-or-proper-party and tort gateways likewise failed for the non-EU conduct. The closely connected facts gateway might otherwise have been satisfied, but it could not cure the absence of a serious issue to be tried.
6. England was not the clearly appropriate forum for claims concerning the Australian and US markets. Those claims were matters for Australian and US competition law. The court should not assume the role of competition policeman of the world.
7. Article 101. The evidence showed that the wholly owned subsidiaries lacked real autonomy from the third defendant and implemented its policy and instructions. The defendants therefore constituted a single economic entity and one undertaking. There was no seriously arguable Article 101 claim.
8. Permission to serve out was granted only for the Article 102 claim concerning conduct in the EU, subject to amendment restricting the claim accordingly. Permission was refused for the Article 101 claim and for the non-EU aspects of the Article 102 claim.