The Google Saga – All the Way to the Supreme Court and Back Page 3

Search for a New Chairperson Continues While the Government

Page 3
Seeks to Pass the Amendment Bill
The Competition Commission of India (CCI) continued to be largely defunct for the third
consecutive month lacking the statutory quorum necessary to fulfil their primary mandate. The
Appellate Tribunal (NCLAT) has only had the opportunity to look into Google’s quibbles, with
the Hon’ble Supreme Court siding with it. Combined with the lack of judicial pronouncements
by any High Court, it contributed to one of the quietest months for competition law
developments in the last decade!
THE GOOGLE SAGA – ALL THE
WAY TO THE SUPREME
COURT AND BACK
As reported in our November newsletter,
CCI vide a much anticipated order dated
20.10.2022, had imposed a hefty monetary
penalty of INR 13.37 Bn on Google for
abusing its dominant position in licensable
OS for smart mobile (Android), and related
markets in India. More pertinently, the CCI
also directed Google to immediately
implement changes to its agreements with
OEMs including (i) removing any
requirement to pre-install a bundle of
applications on their smart devices; (ii) de-
linking the licensing of the Play Store with
the pre-installation of Google search
services; (iii) not offering monetary
incentives for exclusivity; (iv) removing
anti-fragmentation obligations; (v)
permitting users to uninstall pre-installed
apps on their smart phones; and (vi)
permitting app store developers to
distribute their play stores through the
Google Play Store. Naturally Google chose
to challenge the order before the NCLAT
and also sought a stay on the operation of
the order.
The NCLAT, vide an order dated
04.01.2023, while noting the urgency of the
matter, declined to grant any interim relief,
and decided to hear the matter finally on an
expedited basis, upon the deposit of a 10%
of the penalty amount.
Disgruntled by NCLAT’s order, Google
resorted to its last remedy, and appealed
before the Hon’ble Supreme Court.
The Supreme Court after a perusal of the
objections raised by Google to the NCLAT
order, and the findings and observations of
the CCI, also declined to grant interim
relief. While upholding the NCLAT’s order
and dismissing the appeal vide an order
dated 19.01.2023, the Supreme Court
directed Google to comply with all the
directions given by CCI within a period of
seven (7) days. Additionally, it requested
the NCLAT to try and dispose of the main
appeal by the 31st of March 2023, pursuant
to which the matters have now been listed
on 15.02.2023 – 17.02.2023 for hearing.
SEARCH FOR A NEW
CHAIRPERSON CONTINUES
WHILE THE GOVERNMENT
SEEKS TO PASS THE
AMENDMENT BILL
As mentioned in our December edition of
the newsletter, upon the demission of office
by Mr. Ashok Gupta as the Chairperson of
the CCI at the end of October 2022, Ms.
Sangeeta Verma, an existing member, took
over the leadership as acting chairperson,
while the Ministry of Corporate Affairs
searched for a suitable individual to appoint
to the helm.
Unfortunately, nearly four months have
passed, and despite reports (here and
here) suggesting over 50 applicants had
thrown their hat in the ring, the Government
has not yet been able to zero in on one
worthy enough of carrying the baton
forward.
While it has extended the tenure of Ms.
Verma as an acting Chairperson, this has
not solved the quorum conundrum and
several M&A transactions continue to be
stuck resulting in calls for an ordinance to
obtaining court orders in order to bypass
the statutory requirement.
Interestingly, the Government has released
a fresh call for the appointment of three
additional members in the CCI on
23.01.2023. This seems to backtrack on
the 2018 decision by the same
Government to ‘right-size ’ the CCI which
reduced the number of members from
seven to four, but only appointing three.
This intended to achieve ‘speedier
approvals’ but so far has resulted in an
unfortunate logjam.
In order to remedy the immediate situation,
the Government is now looking to invoke
the doctrine of necessity if news reports
(here and here) are to be believed, and
clearing the several pending transactions
with only two members.
Meanwhile the Government is also trying to
push the Competition Amendment Bill
through, covered in our previous editions
(August, September, and December),
proposing sweeping changes to the
existing regime.
In the 52nd Report of the Standing
Committee on Finance released in
December 2022, the Committee shared its
views on several issues and made certain
recommendations for the Government to
consider. With the Budget Session of the
Parliament commencing on the
31.01.2023, several media reports (here,
here, and here) have confirmed that the
Central Government is set to take up and
modify the Bill for final adoption.