[BREAKING] Supreme Court denies interim relief to Google against CCI order imposing ₹1,337 crore penalty for abuse of dominance

The Supreme Court on Thursday refused to grant interim relief to Google in its plea against a Competition Commission of India (CCI) order imposing a ₹1,337 crore penalty on it for abusing its dominant position in multiple markets in the Android mobile device ecosystem [Google LLC and anr v. Competition Commission of India and ors].A Bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala ordered,"We resist from entering into merits, since matter is pending in appeal by NCLAT. Findings arrived by CCI cannot be held to be without jurisdiction or manifest error at interlocutory stage. While we are not interfering with order of NCLAT, we request the tribunal to dispose off the appeal by March 31, 2023...We affirm the order of NCLAT declining interim relief.".The Court directed the parties to approach the NCLAT with a certified copy of its order with three days. Google has been given an additional week's time to comply with the CCI order..Appearing for Google India, Senior Advocate Abhishek Manu Singhvi said that the tech giant was willing to partially comply with the CCI order in terms of directions 1-5, and that it would ensure that the search app pre-installation exclusivity would not be pursued.He made the following submissions:CCI order is a series of non-reasons, based on misapplication of a Parliament Standing Committee report.Android is not a closed ecosystem unlike Apple. It is open source and compatible with 15,000 smartphone models. Apple has only 1. There are 500 million compatible devices only in India, and 1,500 global manufacturers or original equipment manufacturers (OEMs). CCI order says I must license my proprietary software. We have an anti-fragmentation agreement.MADA (Mobile Application Distribution Agreement) Rules allow for multiple play stores. People tend to install multiple. Indians download the most. .CJI Chandrachud then queried,"Why should you insist on Chrome (pre-installed on smartphones)?" If you insist on a bouquet, you lose open source...it affects choice to consumer. All that you have told us goes against you. Look at the market you hold, with that line of penetration if you insist on your bouquet..."Singhvi responded,"Google is there because of excellence, not dominance. There are rival play stores, rival browsers, rival video players."He went on to contend:Third direction of CCI is highly objectionable. Rival play store owner should be able to sit inside my play store. Can CCI ever give a direction like this? A rival person. Mine is voluntary, optional, free. How do I control security, malware? No direction anywhere else in the world (like this). Unfortunate non-innovation. This direction was given without any evidence of abusive dominance. OEM chooses the best in the market, Google is always selected since it is the best in the market. OEMs decide to have Google as a pre-installed app and user can uninstall. There is no restriction on uninstalling...no finding on abuse of dominance.There is no direction by European Commission on abuse of dominance. There is nothing today to show that the European Act is relevant in this case. There was a Parliamentary Standing Committee report.Parliamentary Committee has to recommend, it has to go the Chairman of the House, and then it is recommended to the government. European law DMA (Digital Marketing Act) is irrelevant for India.EC did not direct any for uninstalling. Only CCI did. EC gave a limited direction for unbundling search and Chrome from Google Play..At this point, CJI Chandrachud said,"Dr Singhvi, we can be ahead of the European Union as well right? EU may be a benchmark for us to not fall behind, but we can surely move ahead. Look at the nature of EU market and our market. We cannot lose sight of the peculiarities of our market. The depth and penetration of the market. Data is cheap today because of the mass and consumption therein."Singhvi said,"Stay on order is limited to only two or three issues. That is all. There has been no investigation or finding of abuse. My first appeal is pending in April. If something is happening for 20 years, what will happen if there is an extension of three months? Where will Google run away?""Yes, we know Google will not do that," the CJI replied..The senior lawyer then asked the apex court to hear the plea, at the risk of losing the right of first appeal before the National Company Law Appellate Tribunal (NCLAT), which will hear the matter in April. He concluded,"Criminals can get two appeals, at times three, but under Competition Law, I do not even get one?".Representing the CCI, Additional Solicitor General N Venkataraman began by arguing,"We have seven grounds. This is a direct ridicule of the quasi-judicial authority. We rely on EC not because we have to follow it, whole case of CCI is post decision of EU. What steps have been taken? No cut copy paste submission by us."CJI Chandrachud then asked,"Suppose they are directed to comply today. Will that lead to irreversible action and appeal becoming infructuous?""We are on conduct post the order. Google is talking about security. So when you do this in Europe, you have no security threat. But in India, threats? This is continued market slavery and this is feudalistic," the ASG responded, adding,"If a stay is there...then a stay by the NCLAT, then hearing will come here... then two and a half years will be gone. It's already gone from the 2026 deadline set up by us.".ASG Venkataraman added:These new licensing operations had to come in effect in 2018, and now he says he will comply in 3 months. 3 years it has been.Size of mobile phone market in 2021 was 540 billion euros. We aim to have tier 2 and 3 companies develop here, have local manufacturing here. This is our roadmap from 2021 to 2025-26.Competition Law democratizes business and stops any feudalistic practice. Any stay will create a hurdle..Appearing for the intervenors, Senior Advocate Mukul Rohatgi argued,"Mandatory pre-installation of apps reduces incentive to download anything else. There is no reason for India not to be treated at par. You cannot treat the laws of this country as laws of third world.".The Court was hearing Google's appeal against the January 6 NCLAT order refusing interim relief of stay on the Competition Commission of India (CCI) order of October 2022 that had imposed a ₹1,337 crore on the tech giant for abusing its dominant position in the Android mobile device ecosystem.Apart from imposing the penalty, the CCI had directed Google to cease and desist from participating in anti-competitive practices and directed it to modify its conduct within a defined timeline.The NCLAT had opined that since there was no urgency shown in filing the appeal, Google could not be allowed to insist on interim relief. It thus listed the matter for further hearing on April 3. The tribunal had also directed Google to deposit 10 per cent of the fine amount..On Monday, while hearing an application seeking a stay on the CCI ruling, the top court had asked Google whether it will put in place the same regime in India as it has in Europe with respect to the Android mobile devices market.This query was posed after ASG Venkataraman had submitted on behalf of CCI that Google had complied with a similar order passed by the European Commission.The judges then went on to remark that they would consider sending the stay application back to the NCLAT for fresh determination, but passed no such order.On Tuesday, CJI Chandrachud had remarked that it would hear the stay application on merits the next day..[Read order]