Microsoft Corporation v. Commission of the European Communities

Microsoft Corporation v. Commission of the European Communities

The European Court of First Instance has recently confirmed Microsoft's abuse of its dominant position as against European competition law. This Commentary, by Robin van der Hout, a lawyer at KRB Kemmler Rapp Bohlke (EU Law Office in Brussels) and specialist in EU competition law, discusses whether the resulting controversy is more than simply an overreaction to a factually based decision.
 
Mr. van der Hout writes: The first of two types of conduct by Microsoft that was censured by the European Commission was the company’s refusal to supply competitors with “interoperability information” and to authorise them to use such information to develop and distribute products competing with its own products on the workgroup server operating system (OS) market (i.e., file, print, group, and user administration services). The Commission found that this refusal resulted in the foreclosure of competitors from the server OS market and ordered Microsoft to disclose details of its client/server and server/server communication protocols to any parties interested in developing and distributing workgroup server operating systems. For a technical discussion of the issues, see Federico Etro, “Memorandum on: The implications of the CFI ruling on Microsoft vs. the European Commission,” 3 October 2007.
 
Addressing the second type of potentially anticompetitive conduct by Microsoft, the Commission determined that the “tying” of Windows Media Player to Windows PC OS prevented the suppliers of other media players from gaining comparable access to consumers’ PCs. Microsoft was consequently required to offer a version of Windows without Windows Media Player. In addition, Microsoft was fined EUR 497.2 million in 2004.
 
The European Court of First Instance (CFI) upheld the Commission’s decision with the exception of one element – appointing a monitoring trustee to supervise implementation of the remedies at Microsoft’s expense. For a digest of the Microsoft judgment, see Press Release 17 September 2007 “Judgment of the Court of First Instance in the Case T-201/04,” available on the Court’s website at http://curia.europa.eu/en/actu/communiques/cp07/aff/cp070063en.pdf.