Google's Actions Are Feudalistic, Following Different Standards For Europe & India: CCI Tells Supreme Court
Case Title: Google LLC v. Anr. C.A. No. 229/2023
The Supreme Court on Thursday refused to interfere with the order of the National Company Law Appellate Tribunal which refused to stay the order of the Competition Commission of India (CCI) which imposed a penalty of Rs 1,338 crore on Google India for abuse of dominance in relation to Android eco-system.
The matter was heard by a bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala.
Senior Advocate Dr. Abhishek Manu Singhvi, appeared for Google . Additional Solicitor General of India N Venkataraman appeared for the CCI. At the outset, he submitted that CCI had relied upon a similar order passed by the European Commission. In 2018, when the European Commission had passed its order against Google, Google accepted the order, implemented the directions, and adopted all changes. However, he submitted that Google was not extending the same courtesy to India and similar conduct was not followed when the Indian Competition Commission gave directions against Google.
"They're talking about security. So when you do this in Europe, you have no security threat. But in India you have threats? This is indicative of a continued market slavery. It's feudalistic. In Europe they say we'll give it for free. Here, they charge us. It's irreversible in Europe."
ASG Venkatraman also submitted before the court data which showed marketplace dominance of Google. He stated that such dominance and its abuse had resulted in a "status-quo bias".
He further submitted that contrary to what Dr Singhvi had submitted for Google, Mobile Application Distribution Agreement (MADA) was not free, voluntary, and non-exclusive. Stating that the commercial reality was quite different, he said–
"While OEM is not obligated to pre download Google apps, lack of these apps reduces the marketability of the devices. Most users expect it in devices. To have the apps, OEM must sign a MADA and agree for pre-downloading the apps. They have no meaningful choice but to sign MADA. Google Play services, which are very important for OEMs, cannot be downloaded by users independently."
The ASG added that the pre-installation of such apps created a behavioural bias and was used for marketing by Google.
"All these findings have resulted in a statutory infraction," he said.
As per the ASG, this caused lack of bargaining power in OEMs (Original Equipment Manufacturers) and deprived consumers of choice. Thus, it was a threat to the existing market. He also stated–
"The beneficiary cannot be one person. Any stay now will be shown and cited by them at every stage till the matter is decided."
Senior Advocate Mukul Rohatgi, appearing for an intervenor, submitted–
"Mandatory pre installation of apps reduces incentive to download anything else. In 2018, they complied with the same things in EU which they haven't complied with in 5 years here. This is a developing country so they're taking their time with the law. It's not like a tenant seeking a stay. There's no reason to treat this country and the laws of this country as a third world."