Google on Wednesday kicked off its submissions before NCLAT in the final hearing on the Android case by alleging ‘confirmation bias’ against the DG, investigating wing of CCI.
The tech giant has alleged that DG has mechanically followed the European Commission ruling passed against it in a similar matter in 2018.
During the hearing before the NCLAT Principal Bench headed by Justices Ashok Bhushan and Alok Srivastava, Google also argued that CCI ruling did not show ‘effects’ of its alleged anticompetitive practices in the market. It was also contended that CCI ordered investigation on the basis of complaints filed by its research associates.
In today’s hearing, the first of the three days allocated, Arun Kathpalia, Senior Counsel represented Google, while CCI was represented by N Venkataraman, Additional Solicitor General of India.
The Principal Bench also ruled that interveners will be heard after completion of arguments by Google and CCI in the appeals.
The three interveners in the case are Epic Games, MapMyIndia and OS Labs. Amit Sibal appeared on behalf of Epic Games and Rajshekhar Rao represented MapMyIndia.
After hearing preliminary submissions of Google, the Principal Bench posted the appeal for further hearing on Thursday.
On the issue of ‘confirmation bias’, Google contended that the DG mechanically followed European Commission’s order in Android case without any independent examination and investigation according to India based evidence.
In 2018, the European Union had slapped record antitrust fine of €4 billion on Google for throttling competition and reducing consumer choice through the dominance of its mobile Android operating system.
‘CONFIRMATION BIAS’
Put simply, ‘confirmation bias’ happens when a person gives more weight to evidence that confirms their beliefs and undervalues evidence that could disprove it. It is tendency to interpret new evidence as confirmation of one’s existing beliefs.
It maybe recalled that Google had appealed before NCLAT against CCI’s ruling of October 20 last year.
In the memorandum of appeal filed by Google before NCLAT, the tech giant contended that the DG had copy-pasted parts of the European Commission’s conclusions in its 2018 Android decision (EC Decision), submitting them as the DG’s own independent finding without undertaking an independent investigation according to India specific evidence.
In fact, the issues of copy pasting by the DG as well as India specific evidence was raised by Google before the CCI in September 2022. The CCI examined the same and gave its reasoning in its order passed on October 20 last year. The CCI noted that the DG is a fact-finding body and has to gather evidence and forward the same to the commission. The process of adjudication starts post-submission of investigation report. The CCI further added that the commission has examined the evidence independently and findings have been arrived at on the basis of material on record.
On January 4, NCLAT had refused to grant any stay on the order passed by CCI against Google in Android matter where Google was fined ₹1337 crore for its anti-competitive practices. Google then went on appeal to the Supreme Court, which had on January 19 this year in its landmark ruling declined stay and directed the NCLAT to do the final hearing of the Google appeal and give its ruling by March 31.
EFFECTS DOCTRINE
Google on Wednesday submitted before NCLAT that the CCI’s ruling had not established “effects” of its anti competitive practices.
Presently, the law does not require competition watchdog to establish ‘actual effects’ of the anti-competitive conduct of dominant undertakings.
In fact, introduction of effects based doctrine was a key demand of big tech industry and the representatives of the sector deposed before the Parliamentary panel seeking its incorporation into the law. The Standing Committee on Finance had recommended to the government to incorporate ‘effects’ based approach in the Competition Act for examining the cases of abuse of dominance. However, this suggestion has reportedly not been accepted by the government.
