A mere nudge to promote and market one’s own apps is a marketing tool and cannot be said to foreclose the market for the rival competitors, Google argued on Tuesday before a Bench of NCLAT comprising Justice Ashok Bhushan, Chairperson, and Alok Srivastava, Member (Technical).

Continuing his submissions for a seventh day on a trot, Arun Kathpalia, senior counsel representing, Google also asserted that the Competition Commission of India (CCI) was “contradicting itself” in the Android ruling, wondering as to why the competition watchdog finds pre-installation of Google Mobile Suite (GMS) apps anti-competitive, when it has in its order conceded that users expect/want GMS apps.

“CCI concedes that users want and expect them [GMS apps], then where is the problem of Google mandating pre-installation and premium placement?”, Kathpalia asked.

He highlighted that no harm to users were identified by CCI, yet the Mobile Application Distribution Agreement (MADA) requirements (pre installation and uninstallation) were found by CCI to be anti-competitive.

Kathpalia also noted that CCI has wrongly concluded that Google’s ‘data advantage’ forecloses competition. In fact, the order itself records that it only “marginally” improves search results, he added.

“Basically, CCI’s problem with MADA is not that MADA excludes others, but that others can’t be exclusive without MADA. CCI basically wants a way to exclude Google”, the Google Counsel submitted.

Also read: Android case: US tech giants Google and Amazon spar before NCLAT

Google will complete its submissions on Wednesday on substantive aspects whereupon N Venkataraman, Additional Solicitor General of India representing CCI will commence arguments from Thursday. Google is also likely to make submissions on Friday on some alleged  procedural infractions by CCI.

In its ruling, the CCI had noted that the claim made by Google that MADA is optional and voluntary do not reflect the commercial reality in terms of the real choice available to a device manufacturer. While an OEM is not obligated to pre-install any Google app on its Android devices, what cannot be lost sight of is that lack of essential Google apps, e.g., Play Store, erodes marketability of the devices, the CCI noted.

Majority of users expect these apps on an Android device, which unless pre-installed, cannot be accessed as they are not distributed through other Android app marketplaces. Google’s policy of withholding its own apps from non-Google Android app marketplaces reinforces the compulsion for OEMs to pre-install these apps on their Android devices. Access to Play Store is particularly critical as Google is including more functionality and API calls under the closed licensing of Google Play, according to CCI. 

This makes Google Play Services a critical input for Android OEMs. However, to pre-load even a single essential Google app, such as Play Store that provides users access to the Android app universe, a device manufacturer must sign MADA and AFA, committing to pre-install the full GMS suite, the CCI order noted.

Also read: Google pads up with 5 start-ups for NCLAT hearing in Android case

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