2025 (5) TMI 577 - AT - Law of Competition

Anti-competitive practices - abuse of dominant position - identification of relevant market by the CCI - legal standards for effect based analysis - Commission has conducted any effect analysis in its decision or not - Appellant by requiring app developers to mandatory use of Google Play (GPBS) have imposed a discriminatory condition in sale of goods and services and violation of Section 4(2)(a)(i) or not - requirement of payment of commission/fee by the app developers to the extent of 15-30% which fee is not being paid by the YouTube for which payment processor is engaged by Google on payment of 2.3% is discriminatory and violates Section 4(2)(a)(ii) - Google restrictions for mandatorily using of GPBS - Google has abused its dominant position in the app store market and indulged in practices resulting in denial of market access - dominance in market for licensable mobile OS and app stores for Android OS - charging of commission/ service fee from 15% to 30% is discriminatory or not - ex ante regulation for undefined gatekeepers beyond the CCI power - mention of directions contained in paragraph 395 are ultra vires overboard and disproportionate remedial directions or not - penalty imposed by CCI on entire turnover of the Google. Whether identification of relevant market by the CCI insofar as market for apps facilitating payment through UPI in India is wrong and whether all digital modes of payment i.e. wallets UPI net banking credit and debit card are substitutable both from customer and market perspective? - HELD THAT - The CCI while considering the question of substitutability between UPI digital payments and other payments has also noticed the evidence which were on the record i.e. evidence of Amazon Pay Pvt. Ltd. Paytm PhonePe Xiaomi. The observations and findings of the CCI were recorded noting that there is no substitutability between UPI enabled payment system and other payment system i.e. Wallets credit and debit cards and net banking - the findings entered by the CCI while determining the relevant market and holding the relevant markets i.e. market for Apps facilitating payment through UPI in India has been correctly determined. The said product market is not interchangeable or substitutable by the consumer by other payment system i.e. payment by credit or debit cards Wallet and net banking. Thus there are no infirmity in such determination of product market by the CCI. What are the legal standards for effect based analysis. Whether effect based analysis means both proof of conduct leading to actual restriction as well as conduct which is capable of restricting competition? - HELD THAT - It is clear that in effect analysis assessment the conduct of dominant entity which has caused anti- competitive effect or it is likely to have an adverse effect on the competition both need to be looked into. Effect analysis cannot only confine to conduct which has caused actual anti-competitive effect. If an effect is likely to have effect on the restricting competition by the dominant undertaking that can very well also be examined by Competition Authority to find out abuse by dominant entity - the submission made by the Commission that effect analysis need to include both conduct leading to actual harm and also conduct that was capable of causing such harm has to be accepted. Whether Commission has conducted any effect analysis in its decision or not? - HELD THAT - The order of the Commission cannot be read to mean that the Commission has held that merely because Appellant is dominant any of its act shall lead to contravention - Both the conduct which has caused actual harm i.e. anti-competitive conduct which is capable of causing anti- competitive effect contravention can be proved. It is not persuaded to accept the submission of the Appellant that the Commission in its order has not conducted any effect analysis rather Commission in various paragraphs have noticed the Report of the DG the response given by the Appellant and its conclusion and finding. Thus there are substance in the submission of the Counsel for the Commission that effect analysis was conducted by the Commission. Whether the Appellant by requiring app developers to mandatory use of Google Play (GPBS) have imposed a discriminatory condition in sale of goods and services and violation of Section 4(2)(a)(i) was proved? - HELD THAT - To take out a discriminatory condition out of the provision under Section 4(2)(a)(i) it has to be proved that the condition has been adopted to meet the competition. There is no material or pleadings on behalf of the Google to satisfy that condition of mandatory requirement of use of GPBS has been adopted to meet the competition. The Commission after noticing the report of DG and the plea taken by the Commission has already recorded its concurrence with finding and observations of the DG that Google has imposed unfair and discriminatory condition which finding of the Commission is contained in paragraph 312 which we have already extracted above. The conclusion drawn by the Commission that there is breach of Section 4(2)(a)(i) of the Act is based on materials on record. The decision of the Commission insofar as it held that Appellant has violated provision of Section 4(2)(a)(i) upheld. Whether requirement of payment of commission/fee by the app developers to the extent of 15-30% which fee is not being paid by the YouTube for which payment processor is engaged by Google on payment of 2.3% is discriminatory and violates Section 4(2)(a)(ii)? - HELD THAT - The revenue generated by YouTube is a revenue of the Google and no elements of sale on goods or services with regard to revenue of YouTube is involved nor Google is fixing a price for sale of goods or service with respect to YouTube. Thus alleged discrimination with regard to not claiming 15-30% fee from YouTube is wholly unfounded and without any basis. It is satisfying that no allegation of discrimination with regard to condition by which Google claims fee of 15-30% from its app developers who host their paid app and that of engaging a payment processor on lesser payment for its payment in YouTube can be held. The Commission has not adverted to this important aspect of the matter and has erroneously came to the conclusion that there is violation of Section 4(2)(a)(ii) i.e. by imposing discriminatory as Google s own app i.e. YouTube in not paying service fee as being imposed on the other app. The above conclusion is wholly incorrect and cannot be sustained. Thus no violation of Section 4(2)(a)(ii) has been established and the finding and decision of the Commission to that extent deserves to be set aside. Whether Google restrictions for mandatorily using of GPBS have significant negative effect on the improvements and innovative solutions that third party payment processors/ aggregators would be able to bring to the market and is in violation of Section 4(2)(b)(ii) of the Act? - HELD THAT - It is relevant to notice that Google is not a payment processor or payment aggregator. Google s GPay is an UPI app for making payment with regard to paid app and in-app payments and with regard to different apps hosted by developers in Google Play. Payments through the UPI market has been growing upwardly which is reflected from pleas made and materials provided by the Appellant before the DG. Growth in the sector having increased upwardly the observation and finding of the Commission that Google s requirement for mandatorily using of GPBS have limited or restricted technical or scientific development relating to goods or services to the prejudice of consumers are unsustainable. The payments under Google Play under GPBS being less than 1% the finding of the Commission that Google has restricted or limited technical or scientific development relating to market of payment processors/ aggregators cannot be sustained. When more than 99% market of payment through UPI is open and available it does not appeal to reason that Google has limited or restricted technical or scientific development. It is further relevant to notice that three markets which were determined on which entire investigation was conducted by the DG and findings have been returned by the DG the market of payment processors/ aggregators was not determined as relevant market. The market of payment processors/ aggregators having not been established as relevant market nor relevant facts have been evidenced regarding payment processors/ aggregators the findings of violation of Section 4(2)(b)(ii) cannot be sustained - there are no violation of Section 4(2)(b)(ii) of the Act proved before the Commission. Whether Google has abused its dominant position in the app store market and indulged in practices resulting in denial of market access which is violative of Section 4(2)(c) of the Act? - HELD THAT - Google is a buyer of payment processing service and is actually facilitating market access for payment processors. Google s choice of payment processors reflects Google s right to choose its service to service provider. The CCI has failed to identify the market where the alleged denial of access has taken place and further failed to establish anti-competitive effect in that market. Reduction of market share by less than 1% cannot be read to mean denial of market access. Payment under Google Play constitute only miniscule which is less than 1% of the wider digital payment ecosystem in India which continues to flourish. The Appellant has also pleaded that in the year 2021-22 share of transactions through GPay on Play has decreased. The market definition as determined by the Commission has been noted. The market of payment processors/ aggregators is not being determined as relevant market. In paragraph 234 of the Commission s order only three markets have been referred i.e. market for licensable OS for smart mobile devises in India; market for app store for Android smart mobile OS in India; and market for Apps facilitating payment through UPI in India. Google share payment in Google s Play account is less than 1% of the payments made through UPI. Hence it cannot be said that Google has abused its dominant position in the app store market to cause denial of payment processing. Thus no violation of Section 4(2)(c) was proved and the Commission s finding that Appellant being dominant in app store market has caused denial of market access to the payment processors and aggregators is unsustainable. Whether practices followed by Google making developers dependent on Google to access the users on its platform result in leveraging its dominance in market for licensable mobile OS and app stores for Android OS to protect its position in the downstream markets is in violation of the provisions of Section 4(2)(e) of the Act? - HELD THAT - The dominance in first two markets has been used to leverage to promote and protect its position in the market for UPI enabled digital payment apps. Thus violation of Section 4(2)(e) stands proved. Whether the CCI found charging of commission/ service fee from 15% to 30% discriminatory? - HELD THAT - The DG has returned its observation in paragraph 319.9 that charging of 15% to 30% fee is excessive and therefore unfair in terms of Section 4(2)(a)(ii) of the Act. The above question need no elaboration since the Commission itself has returned its finding in paragraph 327 that information available on record is not sufficient to give a finding on the monetization model as followed by Google. Thus the Commission did not give any finding on violation of Section 4(2)(a)(ii) with regard to charging of 15% to 30% fees - no violation on the basis of charging fee of 15% to 30% of Section 4(2)(a)(ii) has been proved. Whether directions in paragraphs 395.2 to 395.8 of the impugned order amounts to form of ex ante regulation for undefined gatekeepers beyond the CCI power under Section 4 and 27 of the Act? - HELD THAT - The Commission observation are that as gatekeeper the Appellant has special responsibility. As per the statutory regime existing on the date violation of Section 4 has to be proved for issuing any directions and penalty under Section 27(b). By terming the Appellant as gatekeeper the observation that certain special responsibilities are on there on the Appellant cannot be the basis for reaching to any conclusion for violation of Section 4. Violation of Section 4 has to be specifically pleaded and proved for imposing any penalty under Section 27. We thus are of the view that the Commission could not have issued any ex-ante directions. The correctness of directions 395.2 to 395.8 shall be considered hereinafter. Whether directions contained in paragraph 395 are ultra vires overboard and disproportionate remedial directions? - HELD THAT - Directions under paragraph 395.4 and 395.5 related to the finding of violation of Section 4(2)(e) which directions are sustained. Directions under paragraph 395.6 and 395.7 are general and insofar as price related condition the commission itself found no discrimination with regard to fee and commission. Hence direction under paragraph 395.6 and 395.7 are not sustained. Directions under paragraph 395.8 are sustained. Whether penalty imposed by CCI on entire turnover of the Google is unsustainable and the CCI could have imposed penalty only on the relevant turnover i.e. turnover of Play Store and the penalty imposed is unsustainable? - HELD THAT - Appellant has abused its dominant position and has violated Section 4(2)(a)(i) and 4(2)(e) the Commission could have very well imposed the penalty. Although it is held that violations under Section 4(2)(a)(ii) 4(2)(b) and 4(2)(c) not proved but penalty was still leviable on proof of violation under Section 4(2)(a)(i) and 4(2)(e). The penalty imposed by the Commission is modified and is substituted by the relevant turnover as reflected in Table-1 2 3 and 4 as submitted by the Appellant vide its letter dated 06.10.2022 - penalty @ 7% of the relevant turnover as per the turnover of last three preceding Financial Year i.e. 2018-19 2019-20 and 2020-21 imposed - Penalty @ 7% of the average turnover comes in INR 2, 16, 69, 12, 773 (USD 2, 98, 89, 312.39). The order passed by the Commission imposing penalty under paragraph 460-470 is modified and substituted accordingly. Conclusion - i) The decision of the Commission holding contravention of provision of Section 4(2)(a)(i) and 4(2)(e) are upheld. ii) The finding and decision of the Commission of contravention of Section 4(2)(a)(ii) 4(2)(b(ii) and 4(2)(c) are not upheld. iii) The directions issued in paragraphs 395.1 395.2 395.3 and 395.8 are upheld. Directions issued in paragraphs 395.4 395.5 395.6 and 395.7 are set aside. iv) The penalty imposed on the Google is modified as per computation contained in paragraph 105 of this order. Thus the penalty imposed on the Google for relevant turnover of last three preceding year of Rs.936.44 crores is modified to the amount of INR 2, 16, 69, 12, 773 (USD 2, 98, 89, 312.39). The Appellant having deposited 10% of the penalty in the present Appeal rest of the amount of penalty shall be deposited by the Appellant within 30 days from today. Appeal allowed in part.

Summary

1. ISSUES PRESENTED and CONSIDERED

The Tribunal considered the following core legal questions:

(1) Whether the Competition Commission of India (CCI) correctly identified the relevant market, specifically the market for apps facilitating payment through Unified Payment Interface (UPI) in India, and whether all digital modes of payment such as wallets, UPI, net banking, credit and debit cards are substitutable from consumer and market perspectives;

(2) The legal standards applicable for effect-based analysis in abuse of dominance cases, including whether such analysis requires proof of actual harm or also includes conduct capable of causing harm;

(3) Whether the CCI conducted an effect-based analysis in its decision;

(4) Whether the mandatory use of Google Play Billing System (GPBS) by app developers constitutes imposition of unfair or discriminatory conditions in violation of Section 4(2)(a)(i) of the Competition Act, 2002;

(5) Whether differential commission fees charged by Google (15-30%) from app developers, contrasted with lower fees paid for Google's own YouTube app (approximately 2.3%), constitute discriminatory pricing violating Section 4(2)(a)(ii);

(6) Whether mandatory use of GPBS limits technical or scientific development and innovation by third-party payment processors and app developers, violating Section 4(2)(b)(ii);

(7) Whether Google abused its dominant position in the app store market by practices resulting in denial of market access, in violation of Section 4(2)(c);

(8) Whether Google leveraged its dominance in the markets for licensable mobile operating systems and Android app stores to protect or enter downstream markets, violating Section 4(2)(e);

(9) Whether the CCI found charging of commission/service fees from 15% to 30% discriminatory;

(10) Whether directions issued by the CCI under paragraphs 395.2 to 395.8 of the impugned order constitute impermissible ex-ante regulation of undefined "gatekeepers" beyond the powers of the CCI under Sections 4 and 27;

(11) Whether the directions issued are ultra vires, overbroad, or disproportionate;

(12) Whether the penalty imposed by the CCI on Google's entire turnover is sustainable or should be limited to relevant turnover attributable to Google Play;

(13) The relief, if any, to which the Appellant is entitled.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Relevant Market Definition and Substitutability of Payment Modes

The CCI identified three relevant markets: (a) market for licensable OS for smart mobile devices in India; (b) market for app store for Android smart mobile OS in India; and (c) market for apps facilitating payment through UPI in India. The Appellant challenged the narrow definition of the third market, arguing that all digital payment modes (wallets, UPI, net banking, credit/debit cards) are substitutable.

The Tribunal referred to the statutory definitions in Section 2(r), (s), and (t) of the Competition Act and the Supreme Court's guidance that market definition is a tool to identify competitive constraints based on interchangeability or substitutability by consumers. The CCI's detailed analysis, including DG's report and evidence from market participants such as Amazon Pay, Paytm, PhonePe, and Xiaomi, found no substitutability between UPI-enabled apps and other payment systems like wallets, cards, or net banking, due to distinct features and consumer preferences.

The Tribunal upheld the CCI's market delineation, finding the product market for UPI-enabled digital payment apps to be correctly determined as distinct and non-substitutable with other digital payment modes.

Issue 2: Legal Standards for Effect-Based Analysis

The Appellant contended that effect-based analysis requires proof of actual harm to competition before finding abuse of dominance. The Commission argued that effect analysis includes both actual harm and conduct capable of causing harm, consistent with the Act's objectives to prevent anti-competitive practices before market distortion occurs.

The Tribunal examined the 1st Google Case judgment by the same Tribunal, which held that effect analysis is necessary to establish abuse under Section 4, with the test focusing on whether conduct is anti-competitive. The Tribunal also considered international jurisprudence, including EU Court of Justice rulings and Singapore Competition Appeal Board decisions, which clarify that abuse can be found where conduct has actual or likely exclusionary effects, and that per se illegality is disfavored.

The Tribunal concluded that effect analysis encompasses conduct causing actual harm as well as conduct capable or likely to cause anti-competitive effects, provided the conduct has already occurred. Hypothetical or future conduct not yet manifested cannot form the basis of contravention.

Issue 3: Whether the Commission Conducted Effect Analysis

The Appellant alleged the Commission failed to conduct effect analysis and relied solely on dominance to establish contravention. The Commission pointed to detailed findings based on DG's report, responses, and evidence.

The Tribunal interpreted the Commission's observations in paragraph 347 as requiring proof of both dominance and conduct constituting abuse. The Tribunal found that the Commission did conduct effect analysis by examining the nature of conduct, its impact on competition, and evidence on record, rejecting the Appellant's contention of absence of such analysis.

Issue 4: Mandatory Use of GPBS and Discriminatory Conditions (Section 4(2)(a)(i))

The Commission found that Google made GPBS mandatory and exclusive for processing payments for paid apps and in-app purchases, and that non-compliance led to denial of access to the Play Store, constituting imposition of unfair and discriminatory conditions. The Appellant argued the policy was justified for security and efficiency.

The Tribunal noted that app developers must enter into Developer Distribution Agreements mandating GPBS use, restricting freedom to choose payment processors. The explanation to Section 4(2)(a)(i) excludes discriminatory conditions adopted to meet competition, but Google failed to prove such necessity.

The Tribunal upheld the Commission's finding that mandatory GPBS use constitutes imposition of unfair and discriminatory conditions in violation of Section 4(2)(a)(i).

Issue 5: Differential Commission Fees and Discriminatory Pricing (Section 4(2)(a)(ii))

The Commission found that Google's own app YouTube paid a significantly lower fee (about 2.3%) compared to 15-30% charged to other app developers, amounting to discriminatory pricing. The Appellant contended that YouTube is not comparable as it is Google's own app, not subject to sale or purchase conditions applicable to third-party developers.

The Tribunal agreed with the Appellant, holding that the differential fee structure does not constitute discriminatory pricing under Section 4(2)(a)(ii) because no sale or purchase transaction occurs between Google and YouTube as internal entities. The Commission's finding on this issue was set aside.

Issue 6: Effect of GPBS on Innovation and Technical Development (Section 4(2)(b)(ii))

The Commission held that mandatory GPBS use limits innovation by third-party payment processors and app developers. The Appellant submitted extensive evidence of market growth and innovation, showing increased competition and no impediment due to GPBS.

The Tribunal found no credible evidence that GPBS restricted technical or scientific development to consumers' prejudice. The relevant market for payment processors was not determined, and payments via GPBS constituted less than 1% of total UPI transactions. The Commission's finding of violation under Section 4(2)(b)(ii) was reversed.

Issue 7: Denial of Market Access (Section 4(2)(c))

The Commission found Google's practices resulted in denial of market access to payment processors and app developers. The Appellant argued Google is not active in payment processing and facilitates market access by subcontracting payment processors.

The Tribunal noted that denial of market access under Section 4(2)(c) is broadly construed, but found that Google did not deny access to payment processors as the vast majority of digital payments occur outside Google Play. The Commission failed to identify the market where denial allegedly occurred or prove anti-competitive effects. The finding of violation under Section 4(2)(c) was set aside.

Issue 8: Leveraging Dominance to Protect or Enter Other Markets (Section 4(2)(e))

The Commission held that Google leveraged dominance in licensable mobile OS and Android app store markets to protect its position in downstream markets for UPI-enabled payment apps. The Appellant contended that no downstream market was defined or linked to anti-competitive conduct.

The Tribunal reviewed statutory provisions and precedent requiring two distinct relevant markets and a causal link between dominance and anti-competitive conduct. The Commission identified the downstream market for UPI apps and found Google's imposition of technology and payment system requirements favored Google Pay, disadvantaging competitors.

The Tribunal upheld the Commission's finding of violation under Section 4(2)(e), concluding Google leveraged its dominant position to protect and promote its UPI app market position.

Issue 9: Discriminatory Charging of Commission/Service Fee

The Commission's DG report found fees of 15-30% excessive and unfair, but the Commission ultimately did not make a conclusive finding on this issue. The Tribunal noted the Commission's position and held that no violation under Section 4(2)(a)(ii) was established based on fee levels.

Issue 10: Directions Amounting to Ex-Ante Regulation of Gatekeepers

The Commission termed Google a "gatekeeper" with special responsibilities and issued directions beyond findings of contravention under Section 4, including transparency, data sharing, and non-discrimination obligations. The Appellant argued that such ex-ante regulation exceeds the CCI's powers under the Competition Act, which is designed for ex-post enforcement.

The Tribunal referred to the Competition Law Review Committee Report acknowledging the need for ex-ante regulation but noting it is not yet part of law. The Tribunal held that while the Commission may recognize gatekeeper status, directions must be grounded in proven contraventions under Section 4. The Commission's ex-ante style directions without corresponding findings were held ultra vires and unsustainable.

Issue 11: Ultra Vires, Overbroad, and Disproportionate Directions

The Tribunal analyzed each direction issued under paragraphs 395.1 to 395.8. Directions related to mandatory GPBS use, anti-steering provisions, user access, and non-discrimination (395.1, 395.2, 395.3, 395.8) were upheld consistent with findings of violation.

Directions concerning data transparency and sharing (395.4, 395.5) and general fairness and pricing transparency (395.6, 395.7) were set aside due to absence of findings of contravention or disproportionality.

Issue 12: Penalty Imposed on Entire Turnover vs. Relevant Turnover

The Commission imposed a penalty of Rs. 936.44 crores calculated at 7% of Google's average turnover for the last three financial years, based on total turnover of Google's entire India operations. The Appellant argued that penalty must be limited to relevant turnover attributable to Google Play and related services, citing the Supreme Court's judgment in Excel Crop Care Ltd., which mandates penalty be imposed on relevant turnover linked to the product or service involved in contravention.

The Tribunal agreed that imposing penalty on total turnover was legally untenable. It held that penalty must be calculated on relevant turnover, including revenue streams related to Google Play, paid apps, in-app purchases, developer fees, and advertising linked to the Play Store ecosystem.

The Tribunal recalculated penalty at 7% of the relevant turnover based on data submitted by Google, resulting in a modified penalty of approximately Rs. 216.69 crores (USD 29.89 million). The penalty imposed by the Commission was modified accordingly.

Issue 13: Relief to the Appellant

The Tribunal partly allowed the appeal as follows:

(i) Upheld the Commission's findings of violation of Section 4(2)(a)(i) (imposition of unfair conditions) and Section 4(2)(e) (leveraging dominance);

(ii) Set aside findings of violation under Section 4(2)(a)(ii) (discriminatory pricing), Section 4(2)(b)(ii) (limiting technical development), and Section 4(2)(c) (denial of market access);

(iii) Upheld directions in paragraphs 395.1, 395.2, 395.3, and 395.8, and set aside directions in 395.4, 395.5, 395.6, and 395.7;

(iv) Modified the penalty to be based on relevant turnover as detailed above, allowing the Appellant to deposit the balance amount within 30 days.

3. SIGNIFICANT HOLDINGS

"87. Market definition is a tool to identify and define the boundaries of competition between firms. It serves to establish the framework within which the competition policy is applied by the Commission. The main purpose of market definition is to identify in a systematic way the competitive constraints that the undertakings involved face."

"65. For finding of abuse under Section 4 relating to the dominant position, it has to be held that the conduct is anti-competitive. We, thus, accept the submission of the learned Counsel for the Appellant that statutory scheme of the Competition Act delineated by Section 4 and Section 18, indicate that conduct of a dominant enterprise or group, which is held to be abusive has to be anti-competitive conduct and there has to be effect analysis on the above point."

"66. We, thus, answer Issue No.1 in following words: For proving abuse of dominance under Section 4, effect analysis is required to be done and the test to be employed in the effect analysis is whether the abusive conduct is anti-competitive or not."

"312. The Commission is of the view that the conduct of Google constitutes an imposition of unfair condition on app developers. It has also been found during investigation that Google is following discriminatory practices by not using GPBS for its own applications i.e., YouTube. Therefore, the Commission concurs with the finding of the DG that Google has imposed unfair and discriminatory conditions in violation of the provisions of Section 4(2)(a)(i) of the Act. This also amount to imposition of discriminatory pricing as Google's own apps i.e., YouTube is not paying the service fee as being imposed on other apps covered in the GPBS requirements. Thus, the Commission is of the view that Google has violated Section 4(2)(a)(ii) of the Act."

"357. Further, being the gateway to Android smartphones due to dominance in the markets for licensable mobile OS and app stores for Android OS, Google is uniquely placed to (and is) leveraging this dominance in favour of Google Pay. These markets are closely related to each other as UPI is used as a method of payment (both for paid apps as well as IAPs on the Play Store). Accordingly, Google's imposition of collect flow technology on other UPI apps, while only allowing Google Pay to use intent flow technology for payments on the Play Store, amounts to leveraging of its position in the markets for the licensable of mobile OS and app stores for Android mobile to protect and promote its position in the market for UPI enabled digital payment apps."

"416. On a holistic appreciation of the facts and circumstances of the case and the mitigating factors put forth by the OPs, the Commission is of the view that the ends of justice would be met if a penalty of 7 % of the relevant turnover."

"83. In the absence of specific provision as to whether such turnover has to be product specific or entire turnover of the offending company, we find that adopting the criteria of "relevant turnover" for the purpose of imposition of penalty will be more in tune with ethos of the Act and the legal principles which surround matters pertaining to imposition of penalties."

"84. Under Section 27(b) of the Act, penalty can be imposed under two contingencies, namely, where an agreement referred to in Section 3 is anti-competitive or where an enterprise which enjoys a dominant position misuses the said dominant position thereby contravening the provisions of Section 4."

"97. Thus, we do not find any error in the approach of the order of Compat interpreting Section 27(b)."

The Tribunal's final determinations were that Google violated Section 4(2)(a)(i) and 4(2)(e) of the Competition Act, 2002, but not Sections 4(2)(a)(ii), 4(2)(b)(ii), or 4(2)(c). The directions and penalty were accordingly modified to reflect these findings, with penalty recalculated on relevant turnover rather than total turnover.