Microsoft Corp v Commission

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Microsoft Corp v Commission was a highly influential case in which the EU Commission accused Microsoft of abusive market dominance practices.<ref name="case" /> The case began in 1998 with a complaint filed by Sun Microsystems over anticompetitive business practices. A preliminary decision against Microsoft by the EU Commission was reached in 2003 and punishment was issued in 2004. Further penalties against Microsoft were issued in 2006 which Microsoft appealed. The Court of First Instance rejected Microsoft's appeal on September 17, 2007.<ref name="summary" />


Microsoft Corp v Commission was not the first case in which Microsoft came under scrutiny for questionable business practices. In 1993, Novell, a Utah-based software company<ref></ref>, filed a complaint that Microsoft "blocked competitors out of the market for operating system software by way of certain anticompetitive practices."<ref name="novell" /> One such practice was "Microsoft's standard agreements for licensing software to PC manufacturers, which required payment of royalties based on the number of computers shipped, regardless of whether the computers contained pre-installed Microsoft software."<ref name="novell" /> This practice made it in the interest of PC manufacturers to ship only Microsoft software, undercutting competitors. The complaint led to an investigation by the EU Commission and Microsoft eventually agreed to change its licensing practices.<ref name="novell" />

In 1998, Sun Microsystems, a California-based software company<ref></ref> acquired by Oracle in 2010<ref></ref>, filed a complaint against Microsoft that the company "would not disclose technical interfaces to Windows NT."<ref name="sun" /> This complaint led to a EU Commission probe of the media streaming technologies used in Windows NT.<ref name="sun" /> In February 2000, based on the findings from the probe, the EU Commission launched a full investigation "on Microsoft's anti-competitive conduct."<ref name="timeline" />



In August of 2003, the EU Commission issued a preliminary decision stating that Microsoft should "reveal the technical details necessary for Microsoft's competitors in low-end servers to achieve full interoperability with Windows PCs and servers."<ref name="prelim" /> With regards to Windows Media player, which Microsoft had bundled with its operating system, the Commission also stated that "either that software [Windows Media Player] should be unbundled from Windows or Microsoft should be forced to bundle competitors' media players as well."<ref name="prelim" /> The Commission backed its decision by stating that it had "talked to more of Microsoft's customers, partners and competitors" finding that "by not disclosing the necessary information to allow rival servers to exchange data with Windows PCs, Microsoft is limiting competition."<ref name="prelim" /> Later, in 2004, the Commission ruled that Microsoft should pay a fine of 497,196,304 euros.<ref name="fine" /> At the time, the fine (which was equivalent to $414,741,766 using historic exchange rates<ref name="exchange" />) was the largest ever levied against a company for anti-competitive practices by the Commission.<ref></ref> Microsoft paid the fine in full while appealing the decision.<ref></ref>


In June of 2004, Microsoft appealed the decision to the EU Court of First Instance, seeking to "suspend penalties imposed by the 2004 Decision (“the case for interim measure”) and annul the 2004 Decision(“the merit case”)."<ref name="timeline" /> In December of 2004, the Court of First Instance rejected Microsoft's appeal of the “the case for interim measure” and stated that "Microsoft should comply with the 2004 Decision, which is given immediate effect."<ref name="timeline" />

Attempted Appeasement

After the failed appeal, Microsoft altered its main operating system, Windows XP, in order to comply with the court ruling about bundled software. The new operating system did not contain Windows Media Player and was branded as Windows XP N Edition.<ref></ref> Initially, Microsoft wanted to call the new operating system "Reduced Media Edition" but the EU regulators objected.<ref></ref> Additionally, Microsoft published the source code for Windows Server 2003 in order to comply with the Commission's mandate about interoperability of third-party software with Windows.<ref name="it" /> However, Microsoft charged for access to the published source code at amounts "between $100 to $600 per server."<ref name="pcpro" /> This was a point of contention with the EU Commission, which stated that "Redmond [Microsoft] is failing to comply with the spirit of the remedies imposed after anti-trust findings."<ref name="pcpro" />

Final Penalties

In December of 2005, the EU Commission warned Microsoft "that it had failed to comply with the original ruling it issued in March 2004."<ref name="bbc" /> The Commission stated that "the interoperability information it [Microsoft] had provided was not complete and accurate." As punishment, the Commission stated that Microsoft would "face fines of up to 2 million euros a day if it did not comply immediately."<ref name="bbc" /> Six months later, in June of 2006, Microsoft began handing over information about its operating systems to the Commission.<ref name="bbc" /> The Commission found that the effort was too late and imposed an additional fine against Microsoft in July of 2006 for the amount of 280.5 million euros due to "continued non-compliance with [the] March 2004 Decision."<ref name="further" /> European Competition Commissioner Neelie Kroes announced the ruling, stating:

"I regret that, more than two years after the Decision, and despite an Order from the President of the Court of First Instance that the Microsoft appeal to the Court does not suspend Microsoft’s obligation to comply, Microsoft has still not put an end to its illegal conduct. I have no alternative but to levy penalty payments for this continued non-compliance. No company is above the law. Any businesses operating in the EU must obey EU law I sincerely hope that the latest technical documentation being delivered by Microsoft will finally bring them into compliance and that further penalty payments will not prove necessary."<ref name="further" />

Microsoft appealed this fine to the Court of First Instance but lost the appeal on September 17, 2007.<ref name="final" /> In the Court's 416 page decision, Microsoft was further required to "bear 80% of its own [legal] costs and to pay 80% of the Commission's [legal] costs."<ref name="final" /> Microsoft announced that it would not appeal the Court of First Instance's decision.<ref>Microsoft finally bows to EU antitrust measures</ref>


Some commentators view the decision of Microsoft Corp v Commission as the start of the decline of Microsoft's tech dominance.<ref>When Microsoft Ruled Tech: An Elegy</ref> Patrick Moorhead, the principal analyst at Moor Insights and Strategies, a technology industry analyst and disruptive strategy firm, stated that "Microsoft had never really recovered from that decision [Microsoft Corp v Commission] in Europe."<ref name="cnbc" /> Drawing parallels to the ongoing litigation against Google by the EU Commission, Moorhead stated that "For years, Google's competitors have been looking at it [Google] like people used to look at Microsoft twenty years ago before they got into trouble. Many people saw the trouble that Microsoft got into in Europe as the point which really initiated their declines versus other companies."<ref name="cnbc" />

The penalties brought against Microsoft were among the first of many levied by EU regulators against American tech companies in recent years.<ref>Europe Targets U.S. Web Firms</ref> President Obama, in an interview with Re/Code<ref></ref>, a technology news site, stated that these attacks against American tech companies are protectionist in natrue:

"Sometimes the European response here is more commercially driven than anything else. As I’ve said, there are some countries like Germany, given its history with the Stasi, that are very sensitive to these issues. But sometimes their vendors — their service providers who, you know, can’t compete with ours — are essentially trying to set up some roadblocks for our companies to operate effectively there. We have owned the Internet. Our companies have created it, expanded it, perfected it in ways that they can’t compete. And oftentimes what is portrayed as high-minded positions on issues sometimes is just designed to carve out some of their commercial interests."


<references> <ref name="summary">EUR-Lex - 62004TJ0201</ref> <ref name="case">Judgement of the Court</ref> <ref name="novell">Novell Complaint Against Microsoft</ref> <ref name="sun">Sun Microsystems Complaint Against Microsoft</ref> <ref name="timeline">Case Timeline</ref> <ref name="prelim">Preliminary Decision</ref> <ref name="fine">Microsoft Fine Decision</ref> <ref name="exchange">Historic Exchange Rates for the Euro</ref> <ref name="it">Concise European IT Law By Alfred Büllesbach</ref> <ref name="pcpro">Microsoft and the EU square up for new battle over source code</ref> <ref name="bbc">Brussels poised to fine Microsoft</ref> <ref name="further">Commission imposes penalty payment of €280.5 million on Microsoft for continued non-compliance with March 2004 Decision</ref> <ref name="final">Judgement of the Court of First Instance September 17, 2007</ref> <ref name="cnbc">Is 'clueless' Europe going to destroy Google?</ref> </references>