Delhi HC asks CCI to take up ADIF’s complaints against Google

The court asked the CCI to consider the complaints by Wednesday (April 26), when Google’s new billing policy is scheduled to become operative.

In a 38-page verdict, Justice Tushar Rao Gedela said “there is no impediment, legal or otherwise, in directing the CCI to take up the applications” under the Competition Act.

The court had completed the hearing in the case and reserved its judgement last Wednesday. The arguments made by the parties were primarily around whether it was within the ambit of the law for the CCI to take the complaints up, given that the commission currently has only two members and is, therefore, lacking a quorum. Under the Competition Act, the quorum for CCI meetings requires at least three members to be present.

During the arguments in the case, the Competition Commission, represented by additional solicitor general N Venkataraman, sought the high court’s guidance on the matter. The ADIF argued that despite the lack of quorum, the CCI was considering merger and acquisition cases, and invoked the doctrine of necessity on account that the new policy of Google was being made applicable from April 26.

To arrive at the judgement, the court dealt with the issue of whether the CCI was validly constituted with only two members to continue its adjudicatory roles; the effect of Section 15 of the Competition Act; and whether the principle of doctrine of necessity would apply in the present case.

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Section 15 of the Act provided that no proceeding of the CCI shall be rendered invalid merely by the reason of any vacancy in or any effect in the constitution of the commission.“…this court is of the considered opinion that the provisions of Section 15 act as a saving clause in regard to a situation where a vacancy or a defect in constitution of the CCI would arise and any such vacancy or defect in the constitution would not invalidate any proceedings so far as the adjudicatory powers of the CCI is concerned,” the order read.

However, the court agreed with the Google counsel’s argument that the doctrine of necessity was with respect to an institution and not a particular case.

ADIF’s complaint

The ADIF, which represents Indian startups like Paytm, Matrimony, MapmyIndia and TrulyMadly, had filed a plea with the court earlier this month seeking an urgent CCI review of Google’s new in-app purchase billing system.

It had alleged that Google was engaging in anticompetitive conduct by implementing the new policy, and that it was taking advantage of the CCI lacking a quorum to look into the industry body’s complaints.

ET reported on April 5 that the industry body had filed complaints with the antitrust watchdog asking it to review the policy. It had filed three such complaints with the CCI.

Under this system proposed by Google, app developers need to pay a commission of 11-26% to the US-based tech giant.

The ADIF approached the high court on April 11, alleging that the competition commission’s “inaction” on the tech company’s new billing system had resulted in Google engaging in antitrust conduct

ADIF’s counsel had submitted to the court that in addition to app developers paying a higher commission to Google under the new policy, there was the matter of transaction data of users, where even the data of users who choose payment methods other than the Google Play billing system would have to be provided to Google.