As NCLAT Principal Bench resumes hearing on Friday (third day) in the Android case, the tech giant Google has over the last two days mounted several arguments against the CCI ruling of October 20 last year.

The crux of the Google arguments so far pertained to how the CCI order failed to demonstrate harm to Competition in India; suffers from Confirmation Bias and completely ignores relevant market in India, evidence before it regarding the same and relies on statements/findings of European Commission and passes it off as its own — First in the DG report and then compounded by the Competition Commission of India (CCI) which condones and confirms the same.

Google has contended that CCI has found fault with the tech giant’s policies, without any basis and despite the Android Operating System (OS) having contributed greatly to tech/mobile industry and led to thriving mobile market.  A significant credit for this goes to pro-competitive policies of Google, according to the submissions made by Senior Counsel Arun Kathpalia representing Google before NCLAT.

The tech giant has gone on to highlight that there are three key stakeholders in the mobile ecosystem (Android ecosystem)— OEM, OS developers (like Google) and App developers and all of them are inter-dependent. Google’s Android OS and ecosystem has been a success story because it has created a thriving global market with 1,100 OEMs, 15,000 devices and millions of Apps. This needs to be contrasted with pre 2007 ecosystem where there were a handful of each of the stakeholders.

Tech giant highlighted as to how its actions to develop and constantly update the Android OS, making it available for free to OEMs, has contributed to lower device prices —From entry level phones being ₹12000-13000 to ₹ 1,500 now. There are now 500 million Android compatible devices in India.

Effects doctrine

Tech giant asserted that all its measures to build Android OS ecosystem had pro competitive effect and that the CCI ought to have (but did not) present any compelling analysis of anti competitive effects. 

Google has argued before the NCLAT Principal Bench that Preamble and Section 18 of Indian Competition law leave no doubt that CCI has to show anti-competitive of entities conduct in order to establish abuse.  CCI has failed entirely in this respect and entire analysis in the impugned order is based on speculation (‘may cause’, ‘possible to cause), according to Google’s submission, adding that speculation and conjecture is not the same as establishing effects.

However, N Venkatraman, Additional Solicitor General, who represents CCI in the Android case, had a different take. Jurisprudentially speaking, there is a clear distinction between the manner in which which conclusions are to be drawn under Section 3 and Section 4 (relates to abuse of dominance). Effects are to be shown under Section 3. Under Section 4, mere abuse has to be shown, according to the ASG. The CCI has from time to time been holding to the position that current law does not stipulate that Effects need not be shown to prove abuse of dominance (Section 4). The Government also recently decided not to accept the Standing Committee recommendation that suggested that ‘effects doctrine’ be incorporated in the abuse of dominance provision in the competition law.

Google has argued that even the complainant in the Android case was not a stakeholder (OEM, App developer or OS developers), but three interns.

MADA allegations

Google has contended that nothing in Mobile Application Distribution Agreement (MADA) is intended to restrict from installing other Apps, including competitors apps. Requiring OEMs to pre-install and prominently place entire GMS suite (earth widget + play store icon+ folder containing remaining Apps on Home Screen) and stipulating that GMS suite Apps cannot be uninstalled but only disabled are “minimal requirements” that ensure functioning device and best user experience. Google’s interest in ensuring success of Android platform is more than anybody else  and therefore minimal requirements cannot be left to other stakeholders, the tech giant has submitted to NCLAT. 

Google has also submitted that MADA and other agreements cannot constitute an imposition because they have been in place since years, prior to the tech giant establishing its dominance in the said markets. It has been highlighted that MADA and other agreements were not signed with OEMs on account of dominance. Also, MADA and other agreements are entirely voluntary and without monetary consideration. Tech giant has also contended that it is irrelevant that OEMs are not in a position to negotiate MADA and other agreements. MADA is a standard form contract entered into with 1,000s of OEMs and negotiating MADA will result in non uniform standards, according to Google.

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