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2023 (2) TMI 382
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....Shireen F. Khan, Adv. Ms. Ria Dhawan, Adv. Mr. Mukul Rohatgi, Sr. Adv. Mr. Rajshekhar Rao, Sr. Adv. Mr. Naval Chopra, Adv. Mr. Ajit Warrier, Adv. Ms. Shally Bhasin, Adv. Mr. Yaman Verma, Adv. Mr. Amit Singh Sethi, Adv. Mr. Ritwik Bhattacharya, Adv. Mr. Prateek Gupta, Adv. Ms. Chandni Anand, Adv. Mr. Prateek Yadav, Adv. Ms. Parinita Kare, Adv. Mr. S. S. Shroff, AOR Mr. Jayant Mehta, Sr. Adv. Mr. Lzafeer Ahmad B. F., AOR Mr. Abir Roy, Adv. Mr. Vivek Pandey, Adv. Mr. Aman Shankar, Adv. Ms. Sukanya Viswanathan, Adv. Mr. Srikar Pagadala, Adv. Mr. Abir Roy, Adv. Mr. T. Sundar Ramanathan, AOR Mr. Vivek Pandey, Adv. Mr. Aman Shankar, Adv. Ms. Sukanya Viswanathan, Adv. Mr. Mukul Rohatgi, Sr. Adv. Mr. Rajshekhar Rao, Sr. Adv. Mr. Naval Chopra, Adv. Mr. Ajit Warrier, Adv. Ms. Shally Bhasin, Adv. Mr. Yaman Verma, Adv. Mr. Amit Singh Sethi, Adv. Mr. Ritwik Bhattacharya, Adv. Mr. Prateek Gupta, Adv. Ms. Chandni Anand, Adv. Mr. Prateek Yadav, Adv. Ms. Parinita Kare, Adv. Mr. S. S. Shroff, AOR ORDER 1. Invoking the appellate jurisdiction of this Court under Section 53T of the Competition Act 2002, the appellants have called into question an order of the National Company Law Appellate Tribunal [....
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....is Court had the option of either remitting the proceedings back to NCLAT for a rehearing of the application for interim relief on merits or considering whether a case for the grant of interim relief in the appeal has been made out on the basis of the materials on the record. We have adopted the second course of action. Remitting the matter back to NCLAT for a detailed hearing on the merits of the application for interim relief would result in a delay in the final disposal of the appeal in accordance with the time schedule which has been set out in the order of NCLAT. Since the entire proceeding is pending before the NCLAT in appeal, this Court while assessing the merits of the order of the CCI should on the basis of a prima facie evaluation, determine whether interference at this stage is warranted. 8. At this stage, it would be necessary to advert to the directions which have been issued by the CCI in its order dated 20 October 2022. In paragraphs 617, 618 and 618, the following directions have been issued by the CCI : "617. Accordingly, in terms of the provisions of Section 27 of the Act, the Commission hereby directs Google to cease and desist from indulging in anti-competit....
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.... this order, shall not be enforced by Google w.r.t. it's agreements with OEMs in India, with immediate effect. 619. Google, however, is allowed three months from the date of receipt of this order to implement necessary changes in its practices and/or modify the applicable agreements and to submit a compliance report to the Commission in this regard." 9. In paragraph 620, CCI has proceeded to quantify the penalty which has been levied on the appellants as a percentage of the average turn over for 2018-2019, 2019-2020 and 2020-2021. 10. Dr Singhvi has urged that there has been no finding by CCI on the abuse of Google's dominant position in India. The fact that Google has a position of dominance is not in dispute. The findings which have been arrived at by CCI in its order in paragraph 485, 486, 487 and 488 need to be noticed at this stage. Those findings are extracted below : "485. Google argues that Indian users download billions of apps each year and therefore developers can offset through downloads any benefit associated with preinstallation of an app. However, Google fails to support its claim with data to show the extent of rival search apps downloaded from Play Stor....
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.... Thus, Google sees a value proposition in its agreement with Apple by securing user search queries from iOS devices and at the same time ensuring that competing engines does not obtain the default position in mobile is the question. 488. It is pertinent to mention that the Investigation has demonstrated that pre-installation of this core suite of apps is non-exclusive, meaning that the MADA partner is free to preinstall competing apps and place them in as prominent locations as Google's apps. As per Google, it offers a non-monetary trade, under which it provides OEMs with an advanced OS and suite of apps for free and OEMs promote Google's revenue generating apps through pre-installation. According to Google, this 'trade' or 'barter' model eliminates an upfront licensing fee for OEMs, which has had significant benefits for OEMs and carriers. Google has also stated that it drives down OEMs' up-front costs, thereby facilitating OEM entry and the release of a wide array of lower-priced devices. However, the Commission holds that irrespective of its effect on the OEMs, the bundling strategy of Google helps further its dominance across markets and affects t....
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.... to cement the dominance of its search engine. Google's strategy rests on the reach, scale and market power of Android, which allows Google to have control over a vast majority of smart mobile devices that serve as key gateways to the. internet. Keeping Android OS open and 'free' of monetary consideration is thus in as much Google's interest as it claims it to be for the OEMs and users. Combined with the power of Android is the dominance that Google enjoys over Play Store which has attained unparalleled market position benefiting from huge indirect network effects, resulting in an overwhelming dependence of users, app developers and consequently of the OEMs. Its gatekeeper position in the Android mobile ecosystem thus makes Google well placed to leverage its power to protect and further enhance its dominance in online search by making it difficult for rival search service providers to enter and compete effectively in the mobile search space. The well-regarded benefits of the opensource system of Android cannot legitimize an exclusionary conduct that causes harm to competition in any specific area/markets." 12. These findings cannot be regarded as contrary to the w....