Delhi: The Supreme Court on Thursday declined to entertain a plea by Google challenging a National Company Law Appellate Tribunal (NCLAT) order, which refused to stay the operation of the Competition Commission of India (CCI) order imposing Rs 1337.76 crore fine on the tech giant.
A bench, headed by Chief Justice D.Y. Chandrachud and comprising Justices P.S. Narasimha and J.B. Pardiwala said the findings by the CCI cannot be said to be without jurisdiction or with manifest error and affirmed the NCLAT order declining to grant interim relief to Google. The bench directed the NCLAT to dispose of Google’s appeal by March 31, and granted Google seven days to deposit 10 percent of the penalty imposed by the CCI.
Additional Solicitor General N. Venkatraman, representing the CCI, argued that Google Play services which are very important for OEMs, cannot be downloaded by users independently and pre-installation creates a behavioural bias, which is used for marketing by Google. He added that all these findings have resulted in a statutory infraction and causes lack of bargaining power in OEMs and deprives consumers of choice.
During the hearing, Chief Justice Chandrachud told senior advocate A.M. Singhvi, representing Google: “Dr Singhvi, all that you gave us in terms of data in fact militates against your argument.”
“Look at the kind of authority which you wield in terms of dominance… data indicates 15,000 Android models, 500 million compatible devices, 1500 OEMs. When you have that kind of market penetration, then by insisting you necessarily have my bouquet, you (are) directly affecting..what the OEM does, impact upon the ultimate consumer,” the CJI said.
Singhvi submitted: “I am one of the players in this ecosystem, and people choose Google Play Store due to its excellence and not because of dominance.”
He added that suppose there is no Android would this revolution in telephony had taken place. Singhvi further argued that in Korea, there is a different user and pressed that Google is there due to excellence and not due to dominance. “Where it is voluntary, non-imposed. It is free, non exclusive, what more you can do,” he said.
On January 11, the Supreme Court agreed to examine an appeal by Google against a decision by NCLAT, declining to stay a Rs 1,337.76 crore penalty imposed on it by the CCI for alleged anti-competitive practices.
Google moved the apex court after the setback at the NCLAT, which did not stay the CCI order on abuse of dominant position in multiple markets in the Android mobile device ecosystem case. Earlier this month, the NCLAT did not find any urgency to pass an interim order, after noting that Google filed the appeal in December last year, though the CCI passed the order in October. It directed Google to deposit 10 per cent of the fine amount.
The tribunal had said that there was no urgency shown in the filing of the appeal, therefore Google could not be allowed to press for interim relief. In October last year, the CCI had imposed a penalty of Rs 1,337.76 crore on the company for abusing its dominant position in multiple markets in relation to Android mobile devices.
The CCI also imposed a penalty of Rs 936.44 crore on the company for abusing its dominant position with respect to its Play Store policies