The Alliance of Digital India Foundation (ADIF), an industry body representing the Indian start-ups and app developers, has moved the Delhi High Court alleging “inordinate delay in adjudication” by the market watchdog in the Google Play Billing matter. Separately, the Indian Broadcasting & Digital Foundation and Indian Digital Media Industry Foundation have also moved a common writ petition before the Delhi High Court alleging “excessive delay, actions and inaction” of CCI in failing to address the continued violation of its order by Google. In the petition, they have accused CCI of violation of principles of natural justice as they have not been accorded “a single opportunity to make oral submissions on even the urgency to hear their application for interim relief”.
In the writ petition, it has been alleged that the failure of CCI in immediately addressing the continued anti-competitive practices and violation of its order by Google, is in breach of its duties to prevent anti-competitive activities. “Such duty has been cast on the respondent statutorily [CCI] under the provisions of the Competition Act, 2002.
It is submitted that Section 18 of the Competition Act casts a duty on the Respondent No. 1 (CCI) to ‘eliminate practices having adverse effect on competition’. It is submitted that whilst Google has been found to be acting in an anti-competitive manner, by failure of the Respondent No. 1 [CCI] to act expeditiously, it is failing to perform its statutory duty to eliminate such practices.”.
“The Petitioner [ADIF] is constrained to approach this Hon’ble Court in its writ jurisdiction against the inaction of the Competition Commission of India to expeditiously hear and decide on the contravention proceedings and the Interim Relief Application, filed by the petitioner under Section 42 read with 33 of the Competition Act, 2002, against Google.
The pleadings in the matter are complete in July, 2023 and despite repeated requests for expeditious adjudication on the contravention and interim relief application, there are no oral hearings conducted and the urgency applications are being disposed of, keeping the matter pending. The delay is for more than 7 months (approximately 210 days). The entire proceedings and objective of CCI being a market regulator and the mandate to ensure speedy disposal to protect the market from anti-competitive conduct of a dominant player is rendered nugatory by such inaction,” alleged the start-ups’ writ before the Delhi High Court.
The petition alleged that Google continues to violate each of the remedy measures issued by CCI, which is not only contemptuous but also has a distortionary effect on the entire app developers market.
It added that the market issues are left non-adjudicated and the app developers are unheard on their interim relief application, “which relates to Google’s anti-competitive and contemptuous Payment Policy relating to Google Play Billing System (GPBS), User Choice Billing System (UCB) and Consumption-Based Model. Such a measure by Google is a stark violation of the remedies mentioned in the CCI order, yet CCI has not adjudicated on the distortionary effects and contemptuous conduct of Google in the market”.
Hobson’s Choice
The petition further said that app developers i are faced with a Hobson’s choice due to non-adjudication of issues and inordinate delay by the CCI in deciding the interim relief application and contravention application filed by them against Google.
The app developers have also argued that they will either have to succumb to the anti-competitive and contemptuous payment policy of Google and apart from bearing the financial burden by paying 26 per cent or 30 per cent commission to Google (which can shut the business of small app developers), they will have to hand over the business sensitive and competitive data to Google – that would cause grave prejudice and irreparable harm to the app developers, or exit the business market altogether.
Running from pillar to post
The ADIF argued that it has been running from pillar to post to secure the interest of the entire start-up ecosystem in India, despite there being a market regulator. It further alleged that this is not the first time it has approached the Delhi High Court for CCI’s inaction and has alluded that despite the High Court’s direction, CCI didn’t adjudicate on the applications of the app developers, didn’t provide any date for oral hearings in the main contravention proceedings and has kept it pending and non-adjudicated for more than 210 days.
“Given the imminent threat to the entire ecosystem comprising of app developers, end users and payment aggregators, on account of the inordinate delay by CCI to adjudicate the issues in pending contravention proceedings, the petitioner is constrained to approach this Hon’ble Court again” contended the plea.
The petition is likely to come up for hearing before the Delhi High Court on Thursday or Friday.