Appeal Against CCI Order To Become 'Fait Accompli,' Google Tells Supreme Court

Google has approached the Supreme Court, saying its appeal before NCLAT against the Competition Commission of India order, on abuse of dominant position in the Android mobile device ecosystem, would become a 'fait accompli.'The appellate tribunal has refused to put a stay in place and listed hearing Google's plea almost 10 weeks after the tech giant was required to comply with the remedial directions, according to Google.

The National Company Law Appellate Tribunal has "failed to appreciate the consequences of denying interim relief," as Google will have to implement changes to the status quo of 14–15 years and its entire business model by Jan. 19, 2023.

This CCI order "requires Google to modify its existing contracts, introduce new licence agreements, and alter its business model and commercial arrangements with thousands of device manufacturers and app developers," Google submitted in its petition before the apex court.

Google's petition further said that the NCLAT "erroneously rejected" its request for interim relief, seeking a stay despite a "compelling prima facie case, irreversible, and irreparable harm to Google," and demonstrates "non-application of mind, predisposition, and failure" to meet its obligations to preserve an existing and flourishing status quo.

"As a result, absent the Supreme Court's intervention, Google will be required to make far-reaching changes to the Android mobile platform, which has been in place for the last 14–15 years, based on the Commission's deeply flawed order—this will lead to lasting and irreparable harm to Google, device manufacturers, Indian consumers, app developers, and the wider Indian mobile economy," said Google.

Google's plea is scheduled to be heard on Monday by the Apex Court, where it has challenged the refusal of an interim stay by NCLAT over the CCI, imposing a Rs 1,337 crore penalty on the global technology firm.

On Jan. 4, NCLAT declined to stay the order passed by the CCI after observing that the order was passed on Oct. 20, 2022, but the appeal against it was filed on Dec. 20, 2022.

Rejecting it, Google's petition said: "While the remedial directions will come into effect only on Jan.19, 2023, Google filed an appeal a month earlier on Dec. 20, 2022, within the statutory period of limitation."

Google worked tirelessly to prepare a comprehensive appeal of 2,500 pages, taking into account voluminous records of 16,000 pages in response to the impugned order of around 300 pages.

"Google cannot be punished for effectively exercising its right of appeal," it said.

The tech major also alleged that NCLAT acted 'unlawfully' in conditioning the admission of Google's appeal upon it depositing 10% of the penalty amount.

If the "Commission's order is stayed, there will be no harm caused to anyone—Google's agreements with phone manufacturers have been in place for the past 14–15 years, and none of these manufacturers has complained to the Commission," it added.

The tech giant has also questioned NCLAT's directive for a pre-deposit of 10% of the penalty for hearing over the interim stay and said: "Section 53B of the Competition Act does not prescribe a pre-deposit of penalty as a precondition for admitting an appeal."

In October last year, CCI slapped Google with a penalty of around Rs 2,200 crore for anti-competitive practices. It had slapped a Rs 1,337.7 crore fine on Google for exploiting its dominant position with respect to Android, which powers 97% of smartphones in India. It imposed another Rs 936 crore penalty on the U.S. tech giant in a case related to its Play Store policies.

While in the first case, CCI asked Google to allow smartphone users on the Android platform to uninstall apps and let them select a search engine of their choice, the regulator had also asked the company to take corrective steps on policies that forced developers to use Google Play's billing system to list their apps on its Play Store.

Currently, one cannot delete apps such as Google Maps or YouTube from their Android phones when they come pre-installed.

Google has not been able to secure relief from the appellate tribunal, the NCLAT, which asked the company to deposit 10% of the fine within four weeks.

Google has since moved the Supreme Court in the matter of abuse of its dominant position in the Android mobile device ecosystem.