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TMI Blog2023 (2) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... d order of the NCLAT, we would request the NCLAT to dispose of the appeal by 31 March 2023 - we affirm the order of the NCLAT declining to grant interim relief. Appeal disposed off. - CIVIL APPEAL NO 229 OF 2023 - - - Dated:- 19-1-2023 - HON'BLE THE CHIEF JUSTICE DR DHANANJAYA Y CHANDRACHUD HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA AND HON'BLE MR. JUSTICE J.B. PARDIWALA For Appellant(s) Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Arun Kathpalia, Sr. Adv. Mr. Vijendra Pratap Singh, Adv. Mr. Ramsekhar Nair, Adv. Mr. Parhasarthi Jhal, Adv. Ms. Hemangini Dadwal, Adv. Mr. Toshit Shandilya, Adv. Ms. Arunima Chatterjee, Adv. Mr. Mohith Gauri, Adv. Ms. Saijobani Basu, Adv. Mr. Uday Khanna, Adv.Mr. Prabhas Bajaj, Adv. Ms. Deepanshu Poddar, Adv. Mr. Atish Ghoshal, Adv. Mr. Param Tandon, Adv. Ms. Ketki Agrawal, Adv. Ms. Bhaavi Agrawal, Adv. Mr. Abhisar Vidyarthi, Adv. Mr. Aman Sharma, Adv. Mr. Aditya Dhupar, Adv. Mr. Snehasish Mukherjee, AOR For Respondent(s) Mr. N. Venkatraman, Sr. Adv. Mr. Samar Bansal, Adv. Mr. Manu Chaturvedi, Adv. Mr. Tahir Ashraf Siddiqui, AOR Mr. Chandrashekhar Bharati, Adv. Mr. Madhav Gupta, Adv. Mr. Vedant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay. 4. Dr AM Singhvi, senior counsel appearing on behalf of the appellant has submitted that : (i) This Court may decide the merits of the application for the grant of an interim stay though NCLAT has not done so; (ii) NCLAT is seized of a statutory appeal which should not be rendered infructuous by the appellate forum having not decided on the merits of the interim application; (iii) The order passed by CCI suffers from a manifest error in that there is no finding that there has been an abuse of dominance in India within the framework provided by Sections 3 and 4 of the Competition Act 2002; (iv) As regards the anti-fragmentation obligation on Original Equipment Manufacturers, Google would ensure allowing smart phone and tablet makers who licence Play and Search to distribute incompatible smart phones and tablets. 5. Mr N Venkataraman, Additional Solicitor General appears on behalf of the first respondent. We have also heard Mr Mukul Rohatgi, Mr Rajshekhar Rao and Mr Jayant Mehta, senior counsel on behalf of the interveners. 6. NCLAT has listed the appeal for final hearing on 3 April 2023. It has not entered into an analysis of the correctness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her incentives to, or enter into any arrangement with, OEMs for ensuring exclusivity for its search services. 617.5. Google shall not impose anti-fragmentation obligations on OEMs, as presently being done under AFA/ACC. For devices that do not have Google's proprietary applications pre-installed, OEMs should be permitted to manufacture/develop Android forks based smart devices for themselves. 617.6. Google shall not incentivise or otherwise obligate OEMs for not selling smart devices based on Android forks. 617.7. Google shall not restrict uninstalling of its pre-installed apps by the users. 617.8. Google shall allow the users, during the initial device setup, to choose their default search engine for all search entry points. Users should have the flexibility to easily set as well as easily change the default setting in their devices, in minimum steps possible. 617.9. Google shall allow the developers of app stores to distribute their app stores through Play Store. 617.10. Google shall not restrict the ability of app developers, in any manner, to distribute their apps through sideloading. 618. The Commission also directs that the anti-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customise their device's default home screen, for example, by moving an app and/or adding apps to positions of their choosing. However, the Commission is of the view that this does not make any material difference for OEMs who, having signed MADA, cannot offer exclusivity or the most prominent placement to a competing app. User customizations do not give competing app developers a reasonable chance to pay the OEMs to exclusive preinstall their apps and gain traction by exploiting the status quo bias in favour of pre-loaded apps. 487. Google claims that users access rival search services through browsers. However, he Commission notes that Google search is set as a default search service in Google's own browser Chrome, which enjoys significant market share in the Android ecosystem. Thus, another effective path to access users through browser is essentially reserved for Google search. Google's claim that the drop-down menu on Chrome allow users to change the default, again conveniently disregards users' tendency to stay in the default choice and to choose inaction over action. Even for Safari, Google is paying a substantial amount for the opportunity to gain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preinstalled, cannot be accessed as they are not distributed through other Android app marketplaces. Google's policy of withholding its own apps from non-Google Android app marketplaces reinforces the compulsion for OEMs to pre-install these apps on their Android devices. Access to Play Store is particularly critical as Google is including more functionality and API calls under the closed licensing of Google Play. This makes Google Play Services a critical input for Android OEMs. However, to pre-load even a single essential Google app, such as Play Store that provides users access to the Android app universe, a device manufacturer must sign MADA and AFA, committing to pre-install the full GMS suite. 469. Thus, theoretically device manufacturers need not sign MADA, if they do not wish to be subjected to the contractual restrictions. However, such a choice is commercially not viable for the OEMs for various reasons already discussed supra. The so-called choice for OEMs that Google refers to is between signing a non-negotiable MADA and commercial failure. Android OEMs seeking to have a commercially viable business have no meaningful choice but to sign MADA and AFA and accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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