[By Arjun Nayyar and Jayadeep Manchikalapudi]
The authors are students at NALSAR University of Law, Hyderabad and Hidayatullah National Law University, Raipur, respectively.
Setting the Context
Recently, allegations over Google’s actions have brought it under the scrutiny of the Competition Commission of India.[i] With an appeal against a previous anti-trust order still pending in the Apex court, the internet giant has been flagged this time for promoting its payment app Google Pay unfairly through the Google Play Store.[ii] This method allegedly utilises search manipulation, a practice that Google has been accused of in the past.[iii]Such manipulation of search results enables Google’s vertical payment partner to appear predominantly when searching for payment apps from the GooglePlay Store.
This is a textbook case of an enterprise leveraging dominance in one relevant market to enter into or protect its product in another relevant market; a practice that is expressly proscribed under Section 4(2) of the Competition Act of 2002.[iv]However, such instances of anti-trust complaints are not limited to Google, with accusations being leveled against other internet giants as well. Apple also faced a similar issue recently, when Spotify filed an official complaint with the European Union against the discriminatory pricing policy adopted by the company’s App Store between Apple music and other music streaming services.[v]
Both Apple and Google essentially have a dual role as a platform:
- They distribute their own apps (such as Apple Music and Youtube) on their app stores (App Store and Google Play Store respectively); and
- They provide a platform for apps where third-party app developers offer their products and services directly to users.
Most of the complaints deal with the abuse of this dual role, whereby the powerful enterprises attempt to leverage their dominant position in an upstream market (here, the platform) via favoring their downstream division (the apps). This is done at the cost of the competitors in said downstream market, using pre-existing affluence in one market to bolster the success in another.
For a complaint dealing with the abuse of dominance, the establishment of three things is necessary, which are:
- Proving the market is a relevant one(comprising of relevant product);
- The enterprise occupies a dominant position (using factors mentioned under Section19(4) of the Competition Act)[vi]; and
- The conduct amounts to an abuse of said dominant position.
The test for determining the relevance of a market is elucidated in Section 2(r) of the Competition Act[vii] and is based on the products and/or services, along with the location at which these are provided. In the present complaint against Google, the appropriate relevant market would be the market for app stores for android mobile operating systems. This was established in the matter of Umar Javeed v. Google LLC,[viii] through which the Competition Commission of India listed a number of different app stores available for Google Android devices. These include the Play Store, the Amazon AppStore, Samsung’s Galaxy Apps store, Aptoide, the Opera Software ASA’s Mobile Store, and the Yandex Store. The Commission concluded that these different app stores for Google Android devices (“Google Android app stores”) belong to the same product market.
While different app stores do exist in the market for android mobile operating systems, Google is the distinguished leader. The Dutch Authority for Consumers and Markets (ACM)conducted a market study of mobile app stores, with the twofold goal of understanding how app developers get their products in app stores, and the influence which these stores have on the selection of apps for the users.[ix]It concluded that the Apple App Store and Google Play Store have their “app-ecosystems” closed by design, leaving virtually no feasible app stores as alternatives within either of these ecosystems. This was reiterated by the EU Anti-trust regulator, stating Google clearly is a dominant player with over 90% of market share in a high entry barrier market.[x]
If a firm holds a dominant position, it has a special responsibility to ensure that its conduct does not impair genuine and undistorted competition in the common market. This was established as a standard in the EU as early as 1983,[xi] and was extended by the Competition Commission of India to include online platforms and digital markets in Fast Track Call Cab Pvt Ltd v. ANI Technologies Pvt Ltd.[xii]
Assuming the alleged conduct of Google to be true, a question arises as to whether the act of promoting its own app over others amounts to abuse under the Act. The answer lies in the regulatory stance adopted by the Competition Commission of India. The emphasis under section 4(1) of the Act[xiii] is on “abuse”, though the word itself has not been defined under the Act, with the legislature wisely choosing to leave it open to be interpreted on a case-to-case basis.
Having said this, the Government of India in 1999 constituted a high-level committee led by Mr. SVS Raghavan to suggest changes to Competition Law framework in the country in order to bring it at par with the advanced international standard. In its report, the committee elaborated on the meaning of “abuse”, stating that “discriminatory behaviour and any other exercise of market power leading to the prevention, restriction or distortion of competition would obviously be included in the definition of abuse”.[xiv]
In the present complaint, Google’s conduct of using its platform to promote its own payment app over others duly qualifies as discriminatory behaviour, thus falling under the definition of abuse under the Competition Act.
The Lack of Possible Defences
As per accepted EU law,[xv] there is no threshold for the purpose of determining abuse of a dominant position, as the mere misuse of the same is not justified. Moreover, the only defence available under the Competition Actis to prove the abuse by other market players, which is not the case in the present complaint.
Also, the dominant enterprise in the first market need not possess a dominant market position in the second market. The Competition Act does not necessitate a high degree of associational link between the market in which a dominant position is occupied and the market in which the enterprise intends to enter. The only requirement is the leveraging of power in the former to support the latter, as has been mentioned in MCX Stock Exchange Limited and Others v.National Stock Exchange of India.[xvi]
Hence, in the case in question, the only issue that requires deliberation is that regarding the existence of search manipulation on behalf of Google. If the Competition Commission of India finds this to be true, other factors have already been decided through the aforementioned precedents of not just the Indian regulator, but its counterparts around the world.
If the accusations are found to be true, Google’s conduct would not be unprecedented. In fact, such a practice would be quite similar to Amazon’s allegedly anti-competitive business strategies in India, dealt with by the CCI in Delhi VyaparMahasangh v. Flipkart Internet (P.) Ltd.[xvii]Amazon also has a vertically integrated structure that allows it to abuse its position as a marketplace to get ahead of its competitors at the retail level. The Commission observed that this complaint merits an investigation and directed the Director General to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act.[xviii]
The market of payment apps is the latest, and arguably the most widespread phenomenon in the Fin-tech space in India. With the Unified Payments Interface (UPI) being a resounding success, the Indian market has become an attractive destination for global investors, raising anti-trust concerns in the country. As per a survey, Google Pay was the most preferred UPI app on the platform, with almost 60 percent market share in 2019, followed by PhonePe (Walmart’s subsidiary) with 26 percent. With WhatsApp also set to enter the market through a payment app of its own, such concerns are hardly surprising.[xix]
Platform providers operate marketplaces in which they also compete against rivals, allowing them to set the rules in a way that benefits them at the expense of others.Such unfair activities need to be checked as soon as possible and must be nipped in the bud before they kill competition in the relatively young sector. The present complaint against Google thus provides the Competition Commission of India with an ideal opportunity to lay down precedent curtailing such malpractices.
[i]Reuters, Google Pay Faces Case In India Over Unfair Promotion Of App: Report, NDTV (May 27, 2020).
[ii]PTI, Anti-trust case: Google appeals against Competition Commission of India ruling, Economic Times (Apr. 11, 2018).
[iii]Kirsten Grind, Sam Schechner, Robert McMillan, and John West, How Google Interferes With Its Search Algorithms and Changes Your Results, Wall Street Journal (Nov. 15, 2019).
[iv]The Competition Act, 2002, No. 12, Acts of Parliament, 2003, § 4 cl. 2.
[v] Aoife White, Stephanie Bodoni, and Mark Gurman, Apple Faces Spotify Antitrust Complaint to EU Over App Store, Bloomberg (Mar. 13, 2019).
[vi] The Competition Act, 2002, No. 12, Acts of Parliament, 2003, § 19 cl. 4.
[vii]The Competition Act, 2002, No. 12, Acts of Parliament, 2003, § 2 cl. r.
[viii] Umar Javeed v. Google LLC, (2019) SCC OnLine CCI 42.
[ix]The Netherlands Authority for Consumers & Markets, Market study into mobile app stores (Apr. 11, 2019), https://www.acm.nl/sites/default/files/documents/market-study-into-mobile-app-stores.pdf.
[x] Press Release, Antitrust: Commission fines Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen dominance of Google’s search engine, European Commisson(July 18, 2018).
[xi] NV NederlandscheBandenIndustrie Michelin v Commission of the European Communities, (1983) ECLI:EU:C:1983:313.
[xii] Fast Track Call Cab Private Ltd. v. ANI Technologies Pvt. Ltd., (2015) CCI 143.
[xiii]The Competition Act, 2002, No. 12, Acts of Parliament, 2003, § 4 cl. 1.
[xiv]S V S Raghavan Committee, Report of the Committee on Competition Policy and Competition Law (May, 2000), https://theindiancompetitionlaw.files.wordpress.com/2013/02/report_of_high_level_committee_on_competition_policy_law_svs_raghavan_committee.pdf..
[xv] Post Danmark A/S v. Konkurrencerådet, (2015) ECLI:EU:C:2015:343.
[xvi] MCX Stock Exchange Limited v. National Stock Exchange of India Limited, (2011) CCI 54.
[xvii]Delhi VyaparMahasangh v. Flipkart Internet Private Limited, 2020 SCC OnLine CCI 3.
[xviii]The Competition Act, 2002, No. 12, Acts of Parliament, 2003, § 26 cl. 1.
[xix] V Bhatia, Digital payments ride the UPI wave; grow 338% in 2018-19: report, Money Control (Feb. 12, 2020), https://www.moneycontrol.com/news/technology/fintech-upi-gains-ground-razorpay-report-4937601.html.