No technical requirement to pre-install entire Google suite, CCI tells NCLAT

The Competition Commission of India (CCI) on March 14 argued at the National Company Law Appellate Tribunal (NCLAT) that there is no technical requirement for original equipment manufacturers (OEMs) to pre-install the entire Google Mobile Services (GMS) suite.

Additional Solicitor General N Venkataraman, who appeared for the CCI, made this argument to say that Google’s Mobile Application Development Agreement (MADA), which mandates that the OEMs should pre-install the entire GMS and not individual apps, is a tool to enforce the tech giant’s anti-competitive policies.

Dominant player’s responsibility
Venkataraman argued that every dominant player in a market has certain self-imposed responsibilities and Google being a market leader in India through Android OS, should have acted responsibly to ensure there is healthy competition.

Venkataraman submitted that Google used its dominance in the Android OS market to dominate in other markets as well. According to CCI, Google used its applications and Android OS to indulge in unfair trade practices to generate revenue.

CCI stated that Google Search is the default search engine for many web browsers, and including its competitor Apple’s Safari. The ASG alleged that the tech giant pays a substantial amount of money to ensure Google Search is the default search engine, despite having a market share of over 90 percent.

Google allows its apps in other app stores
Venkataraman argued that while Google restricts the entry of applications in its Play Store, it permits its own apps to feature in the app stores of other players, such as Apple. According to CCI, Google does this to have an edge over other apps offering similar functionality.

The ASG said that India’s consumer base is the largest for a free market economy, and hence, the country has to have certain practices in place to avoid a single party from enjoying monopoly.

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 was an unfair condition. CCI subsequently ordered an investigation by the Director General (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 the 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.

The tribunal began its hearing in the case on February 15, and will continue to hear arguments on March 15 . Venkataraman is expected to continue his arguments. Moneycontrol