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Issue of national importance, world looking at us, CCI tells SC

The Competition Commission of India (CCI) on Wednesday told the Supreme Court the issue pertaining to alleged abuse of dominant position by Google in multiple markets in the Android mobile device ecosystem is of “national importance” and the world is looking at how India is dealing with the matter.

A bench of Chief Justice DY Chandrachud and Justices Krishna Murari and PS Narasimha was told by additional solicitor general N Venkataraman, appearing for the CCI, that the top court should hear the issue and Google be not given “two innings” at the National Company Law Appellate Tribunal(NCLAT).

The bench said it agrees there cannot be two innings for anyone and that the matter will be taken up by the court on Thursday.

Android is a popular open-source, mobile operating system installed by Original Equipment Manufacturers (OEMs) of smartphones and tablets.

The top court was hearing a plea of the US-based tech giant against an order of the NCLAT refusing an interim stay on the competition regulator imposing a Rs 1,337 crore penalty on it.

The bench initially said it is looking to send the matter back to the NCLAT, observing that the tribunal has not looked at all the aspects of their interim stay application and it would be appropriate that the tribunal looks into it.

“What we are suggesting is that NCLAT has not really looked at their (Google’s) application of interim stay. They say they will list it in April. Now, we have to look into it. We can ask NCLAT to look into it. If we have to look at it, then it should be as an appeal. It is an interlocutory order.”

The bench suggested that it would ask Google to appear before the NCLAT and ask the tribunal to hear the issue on January 23.

“We will ask them (Google) to not seek adjournment and till then direct that no coercive action be taken for two weeks, or, we will merely set aside the order of NCLAT and direct it to freshly look into it on Monday. Then, we won’t have to pass any interim order,” it said.

Venkataraman said there cannot be “two innings” at the NCLAT. “This is a matter of national importance and the world is looking at us. Our request is that this court hears us out and decides the matter”.

Senior advocate AM Singhvi, appearing for Google, said he agrees with the ASG suggestion and that both the parties want this court to hear and settle the issue once and for all.

The bench said, “Then, we will take up this matter at 11.30 am tomorrow or when all of you are here, whichever is earlier”.

On January 16, the top court had asked Google, which is locked in a legal battle over the Rs 1,337.76 crore penalty, if it would follow the same regime in India as it does in Europe with regard to pre-installed apps in Android-based mobile smartphones.

It had asked the US-based firm to clarify this aspect at the next hearing of the matter.

The top court’s remark had come after Venkataraman had submitted that Google had complied with a similar order passed by the European Commission and alleged the company was discriminating against the Indian consumers.

Google had said that the compliance in Europe pertained to Google’s standard ‘Mobile Application Distribution Agreement’ (MADA) unbundling.

The NCLAT had on January 4 refused an interim stay on an order of the competition regulator and asked Google to deposit 10 per cent of the penalty amount.

The NCLAT admitted the search giant’s challenge to the CCI slapping the hefty penalty.

Singhvi had earlier mentioned the matter seeking an urgent hearing.

The senior lawyer said extraordinary directions have been passed by the CCI and the order has to be complied with by January 19.

The CCI had on October 20 last year asked Google to allow smartphone users on the Android platform to uninstall apps and let them select a search engine of their choice.

That order is to become effective from January 19.

On October 20 last year, the CCI besides slapping the steep penalty on Google had also ordered the internet major to cease and desist from various unfair business practices.

The regulator, which has passed the order after ordering a detailed probe more than three years ago, has also directed Google to modify its conduct within a defined timeline.

The CCI, which had started probing the case in April 2019, has directed that OEMs should not be restrained from choosing from amongst Google’s proprietary applications to be pre-installed and also not be forced to pre-install a bouquet of applications on their smart devices. PTI

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