Google moves Supreme Court against NCLAT order upholding CCI's ₹1,337 crore penalty for abuse of dominant position

Google has moved the Supreme Court challenging the decision of the National Company Law Appellate Tribunal (NCLAT) which upheld the ₹1,337.76 crore penalty imposed on it by the Competition Commission of India (CCI) for anti-competitive conduct in the Android ecosystem..In an appeal filed through advocate Snehasish Mukherjee, the technology giant has said that the tribunal failed to appreciate that the CCI is not a policy-making body. Further, competitors and other companies were not foreclosed from pre-installing their own applications (Apps) and app stores. ."There is no market share cap on apps such as search engines and app stores - and the Commission cannot use provisions of the Competition Act, 2002 to shape market structures through policy by ignoring the effects doctrine, lack of evidence of abuse or connsumer benefits", it is stated..The Bench of NCLAT Chairperson Justice Ashok Bhushan and Dr Alok Srivastava, Member (Technical) had set aside four key directions issued by the CCI.The Court aside the directions issued in paragraphs 617.3, 617.9, 617.10, and 617.7 of the CCI order.Below is a brief summary of what these directions stated:.Paragraph 617.3 -- Google shall not deny access to its play services Application Programming Interface (APIs) to disdvantage Original Equipment Manufacturers (OEMs), app developers and its existing or potential competitors.Paragraph 617.7 -- Google shall not restrict uninstalling of its pre-installed apps by the users.Paragraph 617.9 -- Google shall allow the developers of app stores to distribute their app stores through Google Play Store.Paragraph 617.10 -- Google shall not restrict the ability of app developers in any manner to distribute their apps through side-loading..In a detailed order, the Appellate Tribunal had found that the investigation conducted by CCI into Google's conduct was not in violation of principles of natural justice.The order had held that the pre-installation of entire Google Mobile Services (GMS) on Android phones does amount to unfair use."The Appellant by making pre-installation of GMS suite conditional to signing of AFA/ACC for all Android devices manufacturers, has reduced the ability and incentive of devices manufacturers to develop and sell self-device operating or alternative version of Android and Android Forks and thereby limited technical and scientific development, which is breach of provisions of Section 4(2)(b)(ii) of the Act," the Tribunal held..In addition to 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 Commission had thus issued the following directions to Google which could aid in modifying its conduct:OEMs should not be forced to pre-install a bouquet of applications, and and shall not be restrained from deciding the placement of pre-installed apps, on their smart devices;Licensing of Play Store to OEMs shall not be linked with the requirement of pre-installing Google search services, Chrome, YouTube, Google Maps, Gmail or any other app;Google shall not offer any monetary or other incentives to OEMs for ensuring exclusivity for its search services;Google shall not incentivise or obligate OEMs for not selling smart devices based on Android forks.Google shall not restrict uninstalling of its pre-installed apps by the users;Google shall allow users, during the initial device setup, to choose their default search engine for all search entry points. Users should have the flexibility to easily set as well as easily change the default settings.