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2023 Supreme(Online)(NCLAT) 185
Cont’d…/ NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI [Arising out of Order dated 20.10.2022 passed by the Competition Commission of India in Case No.39 of 2018]
IN THE MATTER OF: 1. Google LLC Having its Office at: 251 Little Falls Drive, Wilmington, DE 19808 USA 2. Google India Pvt. Ltd. Having its Office at: Google India Pvt. Ltd. Unitech Signature Tower-II Tower-B, Sector-15, Part-II, Village Silokhera Gurgaon 122001 India …Appellant Vs. 1. Competition Commission of India Through its Secretary Having its Office at: 1Oth Floor, Office Block- 1, East Kidwai Nagar New Delhi - 110023 2. Mr. Umar Javeed F 12/3, Second Floor, Malviya Nagar, New Delhi, 110017 3. Ms. Sukarma Thapar B-7, Extension, 14/A, Safdarjung Enclave, New Delhi, 110029 4. Mr. Aaqib Javeed Goriwan Bijbehara Kashmir, 192124 …Respondents -2- Present: For Appellants: Mr. Maninder Singh & Mr. Arun Kathpalia, Sr. Advocates, Mr. Vijayendra Pratap Singh, Mr. Ravisekhar Nair, Ms. Hemangini Dadwal, Mr. Parthsarathi Jha, Mr. Toshit Shandilya, Mr. Mohith Gauri, Ms. Sayobani Basu, Ms. Arunima Chatterjee, Ms. Vanya Chhabra, Mr. Atish Ghoshal, Mr. Deepanshu Poddar, Ms. Ketki Agrawal, Ms. Bhaavi Agarwal, Mr. Abhisar Vidyarthi, Ms. Bani Brar, Mr. Kshitij Wadhwa, Mr. Aditya Dhupar, Mr. Prabhas Bajaj, Mr. Ajay Sabharwal, Advocates. For Respondent: Mr. N. Venkataraman, ASG, Mr. Samar Bansal, Mr. Manu Chaturvedi, Ms. Aakriti Singh, Mr. Vedant Kapur, Ms. Shruti Shivkumar, Mr. V. Chandrashekhara Bharathi, Ms. Amritha Chandramouli, Mr. Rahul Vijay Kumar, Mr. Ram Narayan, Mr. Madhav Gupta, Advocates for CCI/R-1. Ms. Shama Nargis, DD/CCI, Mr. Davander Prasad, DD/CCI, Ms. Shweta Gupta, YP/CCI. Mr. Abir Roy, Mr. Vivek Pandey, Mr. Aman Shankar, Ms. Sukanya Viswanathan, Mr. T. Sundar Ramanathan, Advocates for Impleader in I.A Nos. 327 & 336 of 2023. Mr. Amit Sibal, Sr. Advocate with Mr. Naval Chopra, Mr. Yaman Verma, Mr. Aman Singh Sethi, Ms. Shally Bhasin, Ms. Raveena Lalit, Ms. Prerna Parashar, Ms. Parinita Kare, Mr. Shivek Endlaw, Mr. Rohan Bhargava, Mr. Prateek Yadav, Mr. Rishabh Sharma, Mr. Saksham Dhingra, Mr. Darpan Sachdeva, Advocates in I.A. No. 630 of 2023. Mr. Rajshekhar Rao, Sr. Advocate, Mr. Naval Chopra, Mr. Yaman Verma, Mr. Aman Singh Sethi, Mr. Ajit Warrier, Ms. Raveena Lalit, Ms. Prerna Parashar, Ms. Parinita Kare, Mr. Prateek Yadav, Mr. Prateek Gupta, Mr. Shivek Endlaw, Ms. Shally Bhasin, Mr. Darpan, Mr. Rohan Bhargava, Mr. Harshil Wason, Mr. Yashraj Samant, Ms. Chandini Anand, Advocates in I.A. No. 232 of 2023. -3-
JUDGEMENT
ASHOK BHUSHAN, J. This Appeal by two Appellants - Google LLC and Google India Pvt. Ltd. (hereinafter referred to as ‘Google’) has been filed challenging the order dated 20.10.2022 passed by the Competition Commission of India in Case No.39 of 2018, Mr. Umar Javeed and Others vs. Google LLC & Anr. The Competition Commission of India by the impugned order found Google to have abused its dominant position in contravention of the provisions of Section 4(2)(a)(i), Section 4(2)(b)(ii), Section 4(2)(c), Section 4(2)(d) and Section 4(2)(e) of the Competition Act, 2002 (hereinafter referred to as ‘Act, 2002’). In terms of the provision of Section 27 of the Act, 2002, Commission has directed Google to cease and desist from indulging in anti-competitive practices that have been found to be in contravention of the provisions of Section 4 of the Act and directed certain measures to be taken by Google and further in exercise of power under Section 27 Sub-clause (b), Competition Commission of India has imposed penalty to the tune of INR 1337.76 Crore. Aggrieved by the order dated 20.10.2022, this Appeal has been filed by Google.
2. This Tribunal in this Appeal passed an order on 04.01.2023 admitting the Appeal subject to deposit of 10% of the penalty amount. Notices were issued and 03.04.2023 was fixed for final hearing. Google aggrieved by the order dated 04.01.2023, filed an appeal being Civil Appeal No. 229 of 2023 before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court -4- disposed of the Appeal vide its judgment and order dated 19.01.2023 refusing to interfere with the order dated 04.01.2023 but requested the NCLAT to dispose of the Appeal by 31.03.2023. In pursuance of the order of Hon’ble Supreme Court dated 19.01.2023, the Appeal has been finally heard and orders reserved on 20.03.2023.
3. The brief facts of the case giving rise to this Appeal are:
- i.
- In the year 2008, Google’s Android was featured as an open-source licensable operating system for a smartphone. In the year 2009-10, Google signed Mobile Applications Distribution Agreement (MADA) with Original Equipment Manufacturers (OEMs) under which the OEMs get a suite of Google's apps. The OEMs also have to sign Anti- Fragmentation Agreement (AFA) which required OEMs to observe baseline compatibility standards. Google also signed Revenue Sharing Agreement (RSA) with OEMs.
- ii.
- In the year 2015, European Commission (EC) initiated proceeding against Google’s Android licensing practices in Europe and before which authority, proceedings were initiated for infringement of Article 102 of the Treaty of the Functioning of the European Union. The EC took a decision on 18.07.2018 which found Google having abused its dominant position in the relevant market in the European Union.
- European Commission imposed penalty and fine on Google.
- iii.
- On 28.08.2018, Respondent Nos. 2 to 4 to this Appeal viz. Umar Javeed, Sukarma Thapar and Aaqib Javeed filed information under Section -5- 19(1)(a) of the Act, 2002 before the Competition Commission of India.
- Informants claimed to be users of android based smartphones. The Informants stated that the majority of the smartphones and tablet manufacturers in India use Google Android System. Informants stated in their information that Google is dominant in India. The Informants delineated four distinct relevant markets i.e., (i) Licensable Smart Mobile OS; (ii) App Stores for Android Mobile OS; (iii) Online Video Hosting Platform ( OVHP ); and (iv) Online General Web Search Service.
- India was stated to be relevant geographical market in the application.
- Informants alleged that Google is engaged in different kinds of anti- competitive practices. Allegations alleging violation of Section 4 r/w Section 32 of the Act, 2002 were made to in the information.
- iv.
- The Competition Commission of India taking into consideration the information submitted by Respondent Nos. 2 to 4 registered Case No.39 of 2018. The Commission he
