Google has filed an appeal against a single-judge order of the Delhi High Court directing the Competition Commission of India (CCI) to take up the applications moved by the Alliance of Digital India Foundation (ADIF) challenging Google's new in-app user choice billing policy and dispose of them by April 26.
The appeal was mentioned before a division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad by Senior Advocate Sandeep Sethi, who requested that the matter be listed on Tuesday.
"The order was passed yesterday. It is scheduled at CCI today at 2:30 p.m. and the decision has to be taken today. The CCI lacks quorum," Sethi told the Court.
The bench, however, refused to hear the case on Tuesday.
Pronouncing the order on Monday, a single-judge bench of Justice Tushar Rao Gedela had asked the CCI to decide on or before April 26 on the plea also seeking direction on the tech giant to keep the same in abeyance till the issue is adjudicated by CCI.
"There is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of Competition Act as filed by the petitioner for hearing and considering the same in accordance with law on or before April 26, 2023. It is made clear that the observations made herein are only to the extent of deciding the present list before this court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all parties to be taken at the appropriate proceeding," Justice Gedela said.
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The applications seeking interim relief are filed under Section 42 of the Competition Act, 2002 which gives power to the Commission to pass an order against a party for contravening its orders.
The policy is going to come into force from April 26 and according to the petitioner alliance, Google's new billing policy is cloaked as another version of Google Play Billing System, which projects the hoax of giving liberty to app developers to opt for third party payment processors.
"...due to lack of quorum since October 26, 2022, it is practically non-functioning, and the Respondent No. 2 to 5 (Google) are taking advantage of the same are engaging in anti-competitive conducts which will cause irreversible harm to the members of the petitioner and other app developers in the market and cause distortion in the market," the plea stated.
It stated that despite the user using third-party payment processors, Google will be charging "service fee" at a 4 per cent reduced rate from the developer for transaction which happen via non GPBS under the garb of new pricing policy.
"Presently, for such transactions, there is no requirement to pay any commission since GPBS is not used in such transaction. This commission of 26 per cent should not be charged by Google at all, as it is unfair, and arbitrary, when Google's payment services are not being used," the plea stated.
It is the petitioner's case that the app developers, despite not using GPBS, will have to pay almost the same amount.
It is submitted by that Google chose not to introduce the new billing policy after the matter before CCI is concluded when the final order was reserved.
An order was passed by CCI on October 25, 2022, directing Google to not impose any condition on app developers which is unfair, unreasonable or discriminatory to the services provided to them.
The plea also seeks direction that the CCI can validly invoke "doctrine of necessity" in the matter for initiating non-compliance proceedings against Google.
"...CCI by invoking the doctrine of necessity has started approving proposed combinations in the interest of the market and economy. Similar standards and non-discriminatory approach should also be followed by the CCI to adjudicate the information related to anti-competitive conduct professing in the market and deter such activities," the plea stated.
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