Google, on February 24, argued at the National Company Law Appellate Tribunal (NCLAT) that its Mobile Application Distribution Agreement (MADA) does not prevent original equipment manufacturers (OEMs) from pre-installing competing apps with similar functionality.
The tech giant said that many OEMs routinely pre-install more non-Google apps than Google apps in their devices.
Google, while defending MADA, cited that while Google’s web browser Chrome comes pre-installed in devices as a part of the Google suite, many OEMs make their own web browsers as default applications.
The tech giant thus submitted that its MADA does not prevent the manufacturers from pre-installing competing apps.
The company argued that the Competition Commission of India (CCI) did not consider Google’s statements before the Director General (DG) on such factors before coming to the conclusion that it abused its dominant position in the Android ecosystem.
Google further alleged that the CCI’s order does not refer to any specific clause which asks OEMs to make their apps the default apps in the devices. Google’s lawyer Arun Kathpalia said, “This whole bogey of wrong is nothing but just bogey, with no analysis and no enquiry.”
The senior counsel further stated that CCI has come to conclusions on many aspects of the app without having enquired with the end user. He cited the example of Google Search, a leading search engine. He argued that while CCI concluded that making Google Search the default search engine facilitates in maintaining dominance of Google in search services, it did not conduct any enquiries with end users on why they prefer Google Search over other search engines.
Background of the case
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. CCI subsequently ordered an investigation by the DG of its investigative arm on this issue.
CCI, in 2019, expressed a prima facie opinion that mandatory pre-installation of the entire GMS suite under MADA amounted to imposition of unfair conditions on device manufacturers.
On October 20, 2022, 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.
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 court refused to intervene in the case, it asked 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 CCI is based on flawed investigation.
The tribunal began its hearing in the case on February 15, and will continue hearing the case on February 27. 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.
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