Chandhiok & Mahajan’s Advice To Google Leads To NCLAT Modifying CCI Order
Instead of Rs.936.44 crores, the American multinational is to pay Rs.216.69 crores fine;
Chandhiok & Mahajan’s Advice To Google Leads To NCLAT Modifying CCI Order
Instead of Rs.936.44 crores, the American multinational is to pay Rs.216.69 crores fine
Recently, the Competition Commission of India (CCI) penalized Google for abusing its dominant position on Play Store policies. The market regulator also ordered the multinational technology company to undertake eight remedial measures within three months.
However, guided by the law firm Chandhiok & Mahajan, Google challenged the order before the National Company Law Appellate Tribunal (NCLAT).
As a result, the NCLAT bench, comprising Justice (Retd) Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member), modified the CCI’s order.
It set aside four remedial directions and reduced the Rs.936.44 crores penalty.
The NCLAT observed that the following directions were unsustainable, as the Commission could not prove that Google’s conduct in the remedies was anti-competitive or abusive:
a. Google shall set out a clear and transparent policy on data collected on its platform, the use of such data, and the potential and actual sharing of the data with app developers or other related entities.
b. The competitively relevant transaction/consumer data of apps generated and acquired through Google Play Billing System (GPBS) shall not be leveraged by Google to further its competitive advantage. The company shall provide access to the app developer of the data generated through the concerned app, subject to adequate safeguards, highlighted in the order.
c. Google shall not impose any condition (including price related) on app developers that is unfair, unreasonable, discriminatory, or disproportionate to the services provided to the app developers.
d. Google shall ensure complete transparency in communicating to app developers, services provided, and corresponding fees charged. The company shall unambiguously publish the payment policy and criteria for the applicability of the fees.
Additionally, the appellate tribunal rejected three of the five violations against Google related to the abuse of dominant position. It held:
a. The commission/service fee charged by Google is not unfair or discriminatory.
b. Google’s requirement to use GPBS for app and in-app purchases through Google Play did not lead to the denial of market access to the payment processors and aggregators.
c. The company’s requirement to use GPBS for app and in-app purchases through Google Play did not restrict or limit technical or scientific development in the market of payment processors and aggregators.
d. YouTub’s not paying a service fee to Google is not discriminatory.
Thus, while disagreeing with CCI’s computation of penalty based on Google’s turnover in India (including products other than Play Store and Google Pay), the NCLAT reduced the penalty to Rs.216.69 crores.
The appellate tribunal limited it to Google’s turnover from the infringing products - Play Store and Google Pay.
Google was represented by Chandhiok and Mahajan. The team was led by Senior Advocates Sajan Poovayya and Ritin Rai, along with Advocates Karan Chandhiok, Deeksha Manchanda, Tarun Donadi and Bhavika Chhabra.
They were assisted by Senior Advocate Ritin Rai and Advocates Dayaar Singla, Raksha Agrawal and Palash Maheshwari.
The Cyril Amarchand Mangaldas team included Advocates Avaantika Kakkar and Kaustav Kundu.
CCI was represented by Senior Advocate Balbir Singh with Advocates Samar Bansal, Manu Chaturvedi, Monica Benjamin, Kaustubh Chaturvedi, Vedant Kapur, Karan Sachdev, Shivali Singh, Ananya Singh, Vedant Kohli and Khwaja Umair.
Alliance Digital India Foundation (ADIF) was represented by Senior Advocate Jayant Mehta with Advocates Abir Roy, Vivek Pandey, Aman Shankar, S Panda, Biyanka Bhatia, Shreya Kapoor and Rajat Sharma from Sarvada Legal.