Google’s conduct directly conflicts with Make in India and start-up growth policies of the government, N Venkataraman, Additional Solicitor General of India (ASG), alleged on Wednesday.
Continuing his substantive submissions before a Division Bench of NCLAT comprising Chairperson Ashok Bhushan and Technical Member Alok Srivastava in the Android appeal matter, Venkataraman, representing CCI, refuted Google’s submission that the CCI’s order is unreasoned.
Defending the ruling of CCI, Venkataraman argued that the order is based on sound economic principles governing business efficacies and accounts technological aspects. He mentioned economic principles such as entry barriers, market foreclosure, cross side network effects, cross market data advantage, dynamic leveraging, cross-subsidization, status quo bias, unfair bargaining power and choke point capitalism.
‘Super Dominant Google’
Referring to the parameters for assessing dominance, Venkataraman argued that Google qualified to be “Super Dominant” instead of being a mere “dominant” undertaking.
To determine dominance of a market player, the CCI counsel argued that the guiding principles, prescribed by the Competition Act must be evaluated rather than any subjective test and Google undoubtedly passes the threshold for a “dominant” status under the law. “Nevertheless, before the Supreme Court, Google conceded to being dominant. Surprisingly, contradicting itself, Google’s counsel contended that it is disputing the dominant status of Google before the NCLAT”, Venkataraman said.
Citing judgments of the Supreme Court of India and other foreign jurisdictions concerning Google, it was argued that competition law casts a mandatory obligation on Google to not abuse its dominant position and thereby confers a special responsibility on Google not to allow its conduct to impair genuine undistorted competition. An abuse by Google must therefore be dealt with iron hands, the ASG argued.
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ASG pointed out that wherever the Parliament wanted CCI to factor “Appreciable Adverse Effect on Competition”, it has provided so explicitly and Google’s attempt to read this test in Section 4 of the Competition Law which proscribe abuse of dominant position, will compromise the sanctity of the Competition Act.
‘Unfair & discriminatory conditions’
“Google through a web of agreements such as MADA/RSA/AFA/ACC imposes unfair and discriminatory conditions. Even though, as per law, the effect of imposing unfair and discriminatory conditions is not required to prove abuse of dominance, CCI in this case has nevertheless proved the shocking impact Google has created in the market through these agreements”.
“Google has limited and restricted technological and scientific development to the prejudice of users in the market as Google prevents production of Android Forks to compete effectively with Google’s Android OS” and reiterated that Google’s proprietary applications are not permitted on Android Forks and without these applications, commercial death is the only available option for an OEM.
Dominance abuse
ASG also argued that Google abused in dominant position through MADA/AFA/ACC/RSA as they are practices which results in denial of market access. The contention of Google that denial of market access must result in total exclusion of any other player was negated by the ASG on the ground that it was yet another condition read into the Competition Act, which was otherwise not prescribed by the Parliament. The ASG argued that mere denial of market access in whatever manner by Google will trigger the contours of Section 4.
Closing his arguments on the contours of Competition Act, the ASG referred to Section 4(2)(e) of the Competition Act to argue that Google abused its dominance by using its dominant position in one market to enter into or protect the other relevant market. The ASG reiterated his earlier submissions on how Google bundles all its 11 core applications and ties Play Store with Search, Chrome and YouTube to support his contention that Google abuses its dominant position.
ASG will now resume arguments on Thursday and will address NCLAT on procedural arguments raised by Google.
