Close on the heels of Google challenging the Competition Commission of India’s (CCI) ₹1,337.76 crore penalty order for abusing its dominance in multiple markets in the Android ecosystem, the tech giant has fired a fresh salvo by challenging the competition watchdog in the Google Play Store policies matter.

Google currently faces two penalties from CCI in two separate cases — the Android case and the Play Store policies case.

It may be recalled that the CCI on October 25 imposed a penalty of ₹936.44 crore on Google for abusing its dominant position with regard to its Play Store policies. The CCI had also directed Google to allow third-party payment processors.

Sajjan Poovayya, Senior Advocate on behalf of Google, discussed the matter with NCLAT President on Monday, and the matter will be heard on January 11.

On December 21, Google filed an appeal before NCLAT through law firms Chandhiok & Mahajan and Cyril Amarchand Mangaldas. The competition law provides a sixty-day window for appeal before NCLAT against an order of CCI.

Grounds of appeal

Google in the appeal in the Play Store policies case argued that the order of CCI is the product of a “defective and one-sided investigation”.

Google alleged that the DG arbitrarily excluded key stakeholders from its inquiry, including Google’s largest competitor for app distribution — Apple even though the order concedes that Apple’s position is a key element of the market-definition exercise.

Google also alleged in the appeal that the DG posed leading questions to the select group that it chose to include in the inquiry, which is prohibited under the law. The DG report cherry-picked evidence (including answers to leading questions) “while ignoring swathes of contrary evidence and submissions from Google and third parties”.

“The impugned order expressly contradicts settled competition law by denying any need to examine harm to competition in India. The “effects doctrine” (i.e. harm to competition is a necessary element for a finding of an abuse of dominance) is well established under Section 4 of the Act,” added Google in the appeal.

Google also challenged the imposition of a “provisional” penalty by CCI by contending that the law does not provide so. “The penalty is also calculated on Google’s total Indian turnover, rather than on its relevant turnover, contrary to the Supreme Court’s holding in Excel Crop,” said Google in the memorandum of appeal.

Main allegations

Some of the allegations in the Google Play policies case against the tech giant was that Google stipulates mandatory use of Google Play’s payment system for purchasing the apps and in-app purchases (IAPs) in the Play Store; excluding other mobile wallets/UPI apps as one of the effective payment options in the Google Play’s payment system.

It was also alleged that Google skews its search results on the Play Store in favour of Google Pay. Google further privileges Google Pay by displaying it as the first ad when a user searches for another app facilitating payment through UPI. Also, search advertisement manipulation imposes an unfair and discriminatory condition on apps facilitating payment through UPI.

What CCI order said

Besides imposing the monetary penalty, the CCI in its nearly 200-page order of October 25 directed Google to modify its conduct within a defined timeline.

The CCI had directed Google to cease and desist from indulging in anti-competitive practices that were violative of competition law — a move that will prise open Google’s walled garden ‘Play Store’.

It was directed, among other things, not to discriminate against other Apps facilitating UPI payments in India against its own UPI app.

It may be recalled that CCI had in November 2020 directed the initiation of a probe into the aspect of mandatory use of Google Play Store’s payment system for paid apps and IAPs.

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