'Will Same Steps Taken In Europe Be Followed In India?': Supreme Court Asks Google In Challenge To CCI Order Over Android Dominance

Will Google follow the same approach taken by it in European Union, as regards pre-installed apps in Android-based in mobile phones, in India? The Supreme Court asked Google India this question while considering the tech-giant's plea challenging the order of National Company Law Appellate Tribunal(NCLAT) which declined to stay the Competition Commission of India’s (CCI) decision to impose Rs 1,338 crore penalty on it for unfair and anti-competitive practices in relation to Android phones.

During the hearing, the Competition Commission of India told the Court that the EU Commission had found the practise of Google to be anti-competitive way back in 2016 and that the tech company has since complied with the order in Europe. However, it is not willing to follow a similar order passed by the CCI, the bench was told.

The matter was listed before CJI DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala.  Google India has approached the Supreme Court challenging the order passed by the NCLAT on January 6 refusing to stay the CCI's order and directing it to deposit 10% of the penalty amount within a period of three weeks.  

At the outset, CJI DY Chandrachud 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.

"What we will do is this, we will send it back to the NCLAT and ask them to deal with his application of stay", CJI said.

Additional Solicitor General of India N Venkataraman, appearing for the CCI, then told the bench that Google was taking different standards in Europe and India. 

"We are going to show some shocking data. Their grievance that they're 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 consumers from European consumer?", the ASG asked.

However, CJI DY Chandrachud again expressed reservation about the NCLAT approach in adjourning the stay application without deferring the compliance.  

ASG stated that the Google's application does not meet the triple tests for interim relief- prima facie case, balance of convenience and irreparable loss.

CJI DY Chandrachud then asked Dr.Singhvi why the appeal before NCLAT was filed so late against the CCI order passed in October.

"Dr Singhvi, we must tell you one thing. We have also been at the bar. 20th October the (CCI) order is passed. You have got batteries of lawyers. Then you go before NCLAT in January. These are all contrived emergencies. You could have filed an appeal earlier."

To this, Senior Advocate AM Singhvi submitted–

"We could not have. Matter was filed on 20th of December. The NCLAT hears it on 2nd January. On 3rd January, I mention it. It is listed on 4th. The date of compliance is 19th. When the matter came, the learned judge said its voluminous. I say list it tomorrow, have it on 7th, on 10th. The learned judge records that since it is going to be listed in April, there is no need for an interim order. April is three months after compliance".

Singhvi further explained to the bench the CCI directions 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."

CJI then asked, "Are these directions (issued by the CCI) 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 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 will now be heard on 18 January 2023.

Case Title: Google LLC And Anr. v. CCI And Ors. CA No. 229/2023

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