Supreme Court asks Google 'whether it was Willing to Follow Same Regime in India as it did Abroad' in Challenge to CCI order

Supreme Court asks Google 'whether it was Willing to Follow Same Regime in India as it did Abroad' in Challenge to CCI order

The Supreme Court in the matter of Google LLC and another vs. Competition Commission of India and others questioned the US Big Tech to explain whether it will follow the same approach taken by it in European Union (in short EU), as regards pre-installed apps in Android-based in mobile phones, in India?

The coram consisting of Chief Justice of India DY Chandrachud, and Justices PS Narasimha and JB Pardiwala while considering the tech-giant's plea challenging the order of National Company Appellate Tribunal (in short NCLAT) which declined to grant stay on the decision passed by the Competition Commission of India (in short CCI) to impose Rs. 1,338 crore penalty on it for unfair and anti-competitive practices in relation to Android phones.

The CCI before the Top Court contended that the EU Commission had asserted that earlier in 2016 the practices and conduct of Google were found to be anti-competitive and that Google had adhered to the order in Europe, yet the same was not willing to follow a similar order passed by the CCI.

The Google had filed an appeal before the Apex Court challenging the order passed by the NCLAT on 6th January, 2023 refusing to grant an injunction on the CCI's order and directing it to deposit ten per cent of the penalty amount within a period of three weeks.

The CJI at the very inception expressed some reservations about the NCLAT approach, as it adjourned the hearing of the stay application till April 2023 but directed the company to deposit a portion of penalty in the meantime and stated that "we will send it back to the NCLAT and ask them to deal with his application of stay."

Appearing for CCI, the Additional Solicitor General of India (in short ASG), N Venkataraman vehemently asserted that the Tech Giant was taking contrary stand in India as compared to Europe. The ASG in his arguments stated, "We are going to show some shocking data. Their grievance that they are unable to comply with the order within 90 days doesn't stand because they're fully complying with the order passed in 2016 in the European Union. €4 billion fully paid. All these directions have been totally complied within Europe for the past five years. Standing committee is now going into this, this will now be the part of digital law. European Union has already held them to be dominant. We are a third world country. How can they discriminate an Indian consumer from European consumer?"

Moreover, according to ASG, for interim-relief, the prima facie case does not meet the triple tests and neither the balance of convenience was in favour of the Tech Giant nor it showed any irreparable loss.

Dr. Abhishek Manu Singhvi, Senior Advocate appearing for the Tech Giant explained to the bench that the directions issued by the CCI were 'extraordinary.' "Look at these extraordinary directions. The direction in the impugned order is that my API, my proprietary software, is to be compulsorily shared with other persons. Second, side loading. Third is, suppose I have my own play store, suppose these 10 people have play stores. They have no problem on being on the same phone. But the direction is that I must make others sit on my play store, inside my play store."

To which CJI then enquired, "are the directions issued by the CCI in consistent with the steps Google had taken in Europe?"

"The answer is a capital NO", Dr AM Singhvi replied and stated that the CCI had misrepresented and that compliance in Europe was pertaining to 'Mobile Application Distribution Agreement' (MADA) unbundling.

To this, CJI DY Chandrachud asked– "Are you then willing to place same regime which has been put into place in Europe? You reflect on this and come back."

The matter is listed next on 18 January 2023.