“At the very least, the Commission could have debarred the Informants from working in the DG office while the investigation was ongoing, to ensure that the investigating officer was able to impartially assess the case without any influence, such that no concerns could arise on the independence of the investigation,” stated Google.
On October 20 final yr, CCI slapped a penalty of Rs 1,337.76 crore on Google for anti-competitive practices in relation to Android cell gadgets. In the October ruling, CCI had additionally ordered the web main to stop and desist from numerous unfair business practices.
This was challenged by Google earlier than NCLAT, which is an appellate authority over the CCI towards any path issued or resolution made or order handed by the regulator.
According to Google’s plea, CCI has did not conduct an “impartial, balanced, and legally sound investigation” whereas ignoring proof from Indian customers, app builders, and OEMs.
Challenging the CCI order, Google stated the findings are “patently erroneous and ignore” the truth of competitors in India, Google’s pro-competitive business mannequin, and the advantages created for all stakeholders.
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“The Impugned Order is fraught with substantive, analytical, and procedural errors including inter alia ignoring exculpatory evidence, statements from Indian OEMs and developers, the Director General’s (DG’s) copy-pasting of conclusions from decisions of foreign authorities without any application of mind. These errors led the Commission to make perverse and incorrect findings,” it stated.
Google claimed the DG copy-pasted extensively from a European Commission resolution, deploying proof from Europe that was not examined in India and even on the Commission’s file.
“There are more than 50 instances of copypasting enclosed,” Google identified.
The firm additionally questioned the calculation of the penalty quantity of Rs 1,337.76 crore, saying that it was on Google’s complete income from its whole business in India and CCI has “committed several legal errors” in doing so.
“The Commission imposed a disproportionate and excessive penalty, contrary to established principles of competition law,” Google stated.
It has additionally raised the difficulty of the absence of a judicial member at CCI and stated, a remaining resolution ought to solely have been handed on this case by a quorum which features a judicial member.
In its plea, Google asserted that its cell app distribution practices are pro-competitive and never unfair or exclusionary. When a consumer buys an Android cellphone, it already comes with some apps pre-loaded and the consumer can obtain extra apps.
Google emphasised that Mobile Application Distribution Agreement (MADA) is non-compulsory, voluntary and royalty-free, and so it can’t be stated to be “imposed” on OEMs (Original Equipment Manufacturers).
It additionally claimed that the Commission has ignored its proof that OEMs pre-install competing apps.
In 2020, OEMs pre-installed a mean of 38 non-Google apps per gadget in India, that’s about 75 per cent of pre-installed apps per gadget.
“Evidence submitted by Google demonstrates that OEMs frequently place third party apps, including apps that compete with Google’s, prominently on devices’ default home screens,” it argued.
Indian customers are “shrewd mobile users” and use the apps they like, regardless of which apps come pre-installed on their gadgets. “Google’s compatibility measures are necessary for the Android ecosystem and do not inhibit innovation,” it added.
The CCI order utterly “undermines” public curiosity, consumer security and privateness for Indian Android customers, and is “detrimental” to app builders and OEMs.
The instructions of the order that require the corporate to not prohibit the flexibility of app builders to distribute their apps outdoors of app shops “threatens” Google’s skill to indicate applicable warnings to customers in regards to the dangers related to sideloaded apps, it stated.
The order hurts public curiosity and “would risk increasing device prices for Indian users, harming app developers and thwarting competition”.
Google contended that for the Commission to direct such “drastic” cures, it needed to set up that its interventions have been justified. In explicit, it wanted to confirm its suspicions and beliefs by endeavor a fulsome investigation, grounded in proof, earlier than unpicking a business mannequin that has delivered extraordinary advantages to the thriving Indian cell sector.
“It did none of those and merely speculated harms,” Google submitted.
Google added that “the Commission contradicts itself multiple times throughout the Impugned Order.”
It alleged that the Commission endorsed the DG’s baseless conclusions by reference to an errant investigation.
“In particular…No credible market participants were asking the Commission to intervene, or even complaining about Google’s conduct,” it stated.
Since the stated order was issued, quite a few builders have contacted Google expressing their dismay on the Commission’s chosen instructions, it additional stated.