CCI can’t find fault with Google for providing good products, tech giant tells NCLAT

The CCI held that Google can neither force OEMs of smart devices to preinstall its apps nor restrict users from uninstalling such apps.

Tech giant Google on February 23 argued at the National Company Law Appellate Tribunal (NCLAT) that the Competition Commission of India (CCI) cannot find fault or penalise it for providing good products.

Google’s lawyer, Arun Kathpalia, referred to the observations in CCI’s order that while original equipment manufacturers (OEMs) are not obliged to pre-install any Google apps on their Android devices, lack of essential Google apps like Play Store erodes marketability of the devices.

The tech giant’s lawyer thus argued that while CCI had observed that Google’s products increase the marketability of a device, the regulator could not have penalised it for the same.

Google’s lawyer argued that both the CCI and the Director General (DG), who is responsible for investigating into complaints rendered findings against Google without reasoning or enquiry.

Kathpalia took the court through the allegation some of Google’s pre-installed apps in Android phones cannot be uninstalled but disabled. He argued that to come to a conclusion on the effects of disabling an app, the DG should have posed certain questions to the end consumer on the experience.

Secondly, the DG should have ascertained when an app cannot be uninstalled. Kathpalia argued that when such an exercise was not undertaken, CCI could not have come to a conclusion on the aspect.  He said, “Conclusions do not constitute reasons. The CCI’s findings on uninstallation is unreasoned, if it is unreasoned it is arbitrary.”

Kathpalia alleged that the DG’s questionnaire is built on a presumption that Google has indulged in abuse of dominance, and has therefore, not considered evidence on record regarding uninstallation.

‘If it is beneficial, it is not imposition’

Kathpalia cited the CCI’s finding on mobile applications given by Google under Mobile Application Developer Agreement (MADA) being beneficial to OEMs to enhance the phone’s marketability.

He said, “If it is beneficial to counterparty (OEMs) it’s not an imposition”

Kathpalia further reiterated that MADA does not bar OEMs from pre-installing competing apps providing similar functionality as Google apps. He cited the example of UC Browser, a web browser that was banned in June 2020. He stated that in the first six months of 2020, the app was downloaded over 104 million times from Google Play Store. According to Kathpalia, if Google was pushing its web browser chrome, this would not have been possible.

He also said that Apple’s browser Safari could not be removed as default browser in iPhones till 2020, thus arguing that MADA does not create barriers to third-party apps.

In 2018, Android users alleged before CCI that Google was abusing its dominant position in the mobile operating system-related market in contravention of the provisions of the Competition Act, 2022. It was alleged that Google asking device manufacturers to preinstall the entire GMS suite under MADA is an unfair condition. The CCI subsequently ordered an investigation by the DG of its investigative arm on this issue.

The CCI, in 2019, expressed a prima facie opinion that mandatory pre-installation of the entire GMS suite under MADA amounted to the imposition of unfair conditions on device manufacturers.

On October 20, 2022, the CCI, based on the DG’s report and other documents filed by both sides, concluded that Google was abusing its dominant position in multiple markets in the Android mobile device ecosystem.

The CCI held that Google can neither force OEMs of smart devices to preinstall its apps nor restrict users from uninstalling such apps. Furthermore, it asked the US-based company not to offer any incentives to OEMs to comply with its conditions.

Google moved the NCLAT in January, but failed to get immediate relief. The company then approached the Supreme Court against the tribunal's decision. While the apex judicial body refused to intervene in the case, it asked the NCLAT to decide on the matter by March 31, 2023.

On February 15, Google argued that the anti-trust regulator's order suffers from "confirmation bias" and is based on a similar order issued by the European Commission in 2018.

On February 16, the tech giant argued that the CCI is based on flawed investigation.

The tribunal began its hearing in the case on February 15, and will continue to hear arguments on February 16 and 17. The bench, earlier in the day, indicated that it will consider applications for intervention by companies which are affected by the alleged abusive policies of Google.