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European Commission v Microsoft Corp – A Never-ending story?

Yesterday the European Commission issued a statement to the effect that it had initiated two (separate) antitrust investigations against Microsoft Corp. on the alleged abuse of a dominant market position, i.e. infringement of the antitrust provisions of the EC-treaty (see Art. 82 EC Treaty: ‘Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.’). All those who have followed the development in this area (for a brief history of the relations between the EU and Microsoft Corp. see this compilation) may recall the decision by the Court of First Instance last September (we reported earlier), where the CFI in part confirmed a decision by the European Commission and imposed a fine of app. 500 million Euros.

This time the two investigations concern the interoperability of Microsoft’s operative system Windows with competitor’s products, and the alleged unfairly tying of Microsoft’s web browser Internet Explorer with Windows.

The first case is apparently based on a complaint by the European Committee for Interoperable Systems (ECIS); see their press release on the issue here. The question of interoperability of Microsoft products was already one of the main subjects of the September 2007 decision by the CFI. According to that decision, interoperability contributes to innovation and choice in the software industry and the refusal of Microsoft to allow interoperability consequently results in reduced competition in the relevant market. Apparently, Microsoft’s decision following the September 2007 judgment of the CFI, to give competitive software producers access to information needed to increase interoperability, wasn’t enough to prevent the European Commission from initiating a second investigation of the issue.

When it comes to tying various software products – in particular Internet Explorer – to Microsoft’s own operative system, the new investigation is in part based on a complaint by Opera Software, who perceives the distribution of its own internet browser to be hindered by the way Microsoft connects its market-dominating operative system with various software products.

It should be mentioned, however, that these investigations are by no means determinations of Microsoft having violated EC Treaty rules on abuse of a dominant market position. It remains to be seen how both Microsoft, the ECIS and the various software producers are positioning themselves in this matter and if – which perhaps is the most important question – the matter can be settled without having to utilize the European court system.

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