SUMMARY
The NCLAT ruling could lead to CCI having to proactively establish ‘effects’ of the alleged anti-competitive conduct by big tech companies in each case
Entering into an unfair agreement, denying market access and preventing innovation are hallmarks of abuse of dominant position, said ASG
The case pertains to CCI’s October 20 order, which penalised Google INR 1,337 Cr for abusing its market dominance in the Android devices market
Dissatisfied with NCLAT’s ruling in the Google antitrust case, the Competition Commission of India (CCI) is reportedly exploring legal options to decide its next course of action in the matter.
Speaking at a virtual event, the Additional Solicitor General (ASG) N Venkatraman said that CCI was exploring options on the NCLAT’s directive that called for undertaking ‘effects analysis’ by the competition watchdog for proving abuse of dominance under current laws.
The reason behind ASG’s displeasure is that NCLAT’s mandate could force CCI to proactively establish the ‘effects’ of the alleged anti-competitive stance by big tech companies in each case, including in many of the ongoing antitrust probes.
“NCLAT has now said that an effects test should be held even though it was consciously discussed by the legislature… in a standing committee, and it was finally felt that effects (analysis or test) should not be part of the law…, therefore, this is one area where CCI would be exploring legal options as to what needs to be done in due course,” ASG Venkatraman was quoted as saying by The Hindu Businessline.
Curiously, CCI had refrained from undertaking any effects analysis while presenting its case before the NCLAT but still received a favourable outcome in the matter against Google.
He also said that CCI believed there was no question of proving abuse of dominance by Google in an ex-ante format right up to the percentage level. Citing his rationale for this, Venkatraman said that the antitrust case involved a super dominant player, Google, and the extent of the alleged abuse was ‘discernible through perfect data’.
“We had argued that once you derelict your special responsibility, enter into an unfair agreement, deny market access, and prevent innovation, then you are considered to have abused your dominant position,” he added.
Speaking on the NCLAT’s ruling in the matter, the ASG noted that 95%-98% of the order confirmed CCI’s findings and that Google only received ‘marginal relief’ with regard to setting aside four of the ten non-monetary directives of CCI.
At the centre of the debate is the October 20 order of the competition watchdog, which penalised Google INR 1,338 Cr for abusing its market dominance in the Android devices market. In a separate case afterwards, CCI fined the tech major another INR 936 Cr for flouting competition norms with regards to its Play Store policies.
Subsequently, Google approached the NCLAT for interim relief in the matter, which was turned down by the tribunal. The tech major then approached the Supreme Court seeking a ban on the NCLAT directive, which was again shot down by the apex court.
However, the SC directed the NCLAT to hear the matter, and, then, after weeks of hearing arguments and multiple submissions, the tribunal sided with the competition watchdog and upheld all monetary penalties.
While Google deals with the regulatory nightmare, Indian startups have also banded together to put pressure on the tech major. The Alliance of Digital India Foundation (ADIF), along with many Indian new-age tech startups, has urged CCI to launch a probe into the high in-app billing fee charged by Google, which is also in contravention of the commission’s antitrust direc
