Google, on Friday, raised issues of procedural violations by the DG (investigations) and the Competition Commission of India (CCI) in its submissions before the NCLAT in the Android appeal matter.
During the course of arguments, Maninder Singh, senior counsel representing Google, took exception to CCI initiating investigation based on a complaint filed by its employees. He also termed the complainants as busybodies who, within a month of EC Press Release in a similar case, approached the CCI alleging abuse of dominance by Google.
“There is also a new breed of intervenors/busybodies, similar to those involved in election process, who find incongruities in election affidavits of candidates. Then they issues tweets and gather public support. Based on this, they crowdfund their ‘efforts’, “ Singh contended.
“Similar is the case of Informant(s), who should not have been permitted at all by the Commission to file the information.”
Singh noted that until 2018, not one OEM or app developer approached the CCI with any grievance about Google’s conduct. The informants, working at the Commission, saw the EC press release and copied it and filed the information within 1 month of the release.
Singh submitted that CCI has prejudged the matter, noting that in any judicial or quasi-judicial function, one has to collate the matter/evidence and then come to a conclusion.
He contended that the CCI has violated Principles of Natural justice; bias is fatal to a quasi-judicial process. The decision is a nullity and the quorum non-judice, it was submitted.
Also, the CCI had a ‘status quo bias’ since the time of the EU press release regarding Google. It is the result of that natural human behaviour, which is reflected in the order, according to Singh.
Singh also raised the issue of the absence of a judicial member in the CCI. Google further submitted that the CCI committed a grave error in approving DG’s biased findings by an ‘overt act’ — where the default was incurable it said ‘no no it’s not a problem’. A judicial brain would not have done this, it was submitted.
Regarding foreclosure, Google submitted that where there is no foreclosure there can never be an anticompetitive conduct. Any number of apps can be installed on the screen of the device and the screen space is unlimited. “Nobody is foreclosed. Where is it written that everybody needs to be accommodated on the default screen? There’s no such mandate as it is impossible to accommodate everybody on the default screen of the device. It is the market forces which determine all this and Google’s conduct is normal business practice”, Singh submitted.
On penalty, Google submitted that there is no permissibility to impose provisional penalty as imposed by the CCI. Further, imposition of penalty cannot be in stages as has been decided by the CCI. Further, this cannot be possible because the CCI is functus officio after imposing the provisional penalty. Further, the provisional penalty has not been imposed in accordance with the Excel Crop judgement (Relevant Turnover), but has been imposed across devices — the entire turnover. Moreover, Google also pointed out that the date of notice by CCI to furnish correct details was on September 19, 2022 which is almost 9 months after Google’s submission on quantum of penalty — December 17, 2021.
Maninder Singh will continue with Google’s submissions on March 13, the same day when Additional Solicitor General N Venkatraman will commence arguments on behalf of Competition Commission of India (CCI).