Parts of NCLAT’s Rs 1,338 cr fine order on Google challenged by CCI in SC

The Competition Commission of India (CCI) has challenged a portion of the National Company Law Appellate Tribunal (NCLAT)’s ruling at the Supreme Court (SC). The NCLAT upheld the fine of Rs 1,338 crore imposed on Google. The tech giant was accused of abusing its dominant position in the Android ecosystem. However, it set aside four out of the ten directives given to Google to change its business practices.

According to a report by the Economic Times on Thursday, June 15, the CCI has specifically contested the NCLAT’s directive, which states that in order to establish abuse of dominance under Section 4 of the Competition Act, the competition watchdog must conduct an “effect analysis.” This analysis determines whether the conduct in question is anti-competitive or not.

The appellate tribunal agreed with Google’s argument that Section 4 specifically excludes discriminatory conditions or prices that may be used to compete. It also emphasised the aim of competition law is to prevent practices that harm competition.

Google argued that to be deemed abusive, the conduct of a dominant company must be anti-competitive, and an effect analysis should be conducted. The CCI, however, disagreed with this viewpoint.

Google has not yet challenged the NCLAT’s findings against it. To ensure that no orders are passed without their knowledge, Google and other parties have filed caveats in the SC.

In October 2022, the CCI had ordered Google to offer app developer the option to use third-party billing or payment processing services for app and in-app purchases. Furthermore, the competition commission order the tech giant to pay a penalty.

In March, the NCLAT gave Google 30 days to implement the other measures directed by the CCI, excluding the four directives that were set aside.

The appellate tribunal dismissed the CCI’s directive to Google, which prohibited the denial of access to its Play services application programming interface (API) in a way that disadvantages other equipment manufacturers, application developers, and competitors.

It also rejected another CCI directive that allowed application store developers to distribute their app stores through Google’s Play Store. The appellate tribunal deemed these directives as “unsustainable.”