The Delhi High Court has asked for the stand of the Competition Commission of India (CCI) and Alliance of Digital India Foundation (ADIF) on Google's appeal against an order asking the watchdog to scrutinise the tech major's new payment policy, which allows the use of third-party payment processors for paid app downloads and in-app purchases on a commission basis.
A two-judge bench, Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, issued notice on Google's appeal against the single judge's order. After the plea of ADIF, an alliance of individuals and an industry representative body of innovative startups in the country, the court ordered CCI to investigate Google's new billing policy.
On Tuesday, the court denied tech giants appeal of urgent hearing on the appeal on same day. Senior advocate Sajan Poovayyaa said that he was not asking for an interim order at this stage.
Earlier this month, the ADIF had approached the single-judge with the complaint that the anti-trust regulator had failed to act against its application objecting to Google's new payment policy. The regulator cited lack of quorum to arrive at a conclusion.
Before the single-judge bench, the tech major has opposed the petition on grounds such as there were only two members in the committee and the chairperson is yet to be appointed, it further said that the number of representatives is not enough to adjudicate the application.
However, in a 38-page order issued on Monday, Justice Tushar Rao Gedela stated that any vacancy or defect in the Commission's constitution would not invalidate any proceedings in terms of its adjudicatory powers, and according to Additional Solicitor General N Venkataraman, the Commission was formed in accordance with the provisions of the Competition Act and was very much functional and carrying out adjudicatory functions.
The single-judge bench, said, "There is no impediment, legal or otherwise, in directing the CCI to take up the applications under section 42 (contravention of CCI orders) of the Act, as filed by the petitioner, for hearing and considering the same in accordance with law on or before 26.04.2023. Accordingly, the petition stands disposed of in above terms."
The ADIF had earlier submitted before the single-judge bench that under Google's "User Choice Billing" policy, which would be implemented from April 26, Google would be charging a service fee of 11 per cent or 26 per cent in case of third-party payment processors. The body said that it is an anti-competitive behaviour and an attempt to bypass an order passed by the Commission.
It had stated that the US technology giant controls a mobile application marketplace for Android devices dubbed "Play Store," which has a monopoly in that market, and that there is no necessity to pay any commission to third-party payment processors under the current structure.
The single-judge court was informed that, in October last year, the commission, while issuing a Rs 936 crore penalty, urged Google to allow and not limit app developers from utilising any third-party charging service and to not impose any discriminatory condition. The ADIF had stated that its complaint was that the Commission had failed to act on its request on the new policy due to a lack of quorum to address the matter.
It had argued that the Commission should utilise the "doctrine of necessity" and investigate the matter because failure to intervene would create irrevocable harm to the petitioners and other app developers, as well as market distortion. In the meanwhile, the petitioner requested that the policy be suspended until the case is investigated by the antitrust regulator.
