The case will investigate two claims: that Microsoft has refused
to disclose information about its software's interoperability with
other software and whether the inclusion of the Internet Explorer
browser with its Windows operating system is illegal.
The Commission fined Microsoft in 2004 for similar offences, the
failure to provide interoperability information and the bundling of
a media player with Windows. That case took years to resolve, but a
Court of First Instance judgment in September of last year backed
the Commission in a decision that Microsoft did not appeal.
That court ruling has given the Commission the backing it needs
for the new action. "In its Microsoft judgment of 17 September
2007, the Court of First Instance confirmed the principles that
must be respected by dominant companies as regards interoperability
disclosures," said a Microsoft statement. "As for the tying of
separate software products, in its Microsoft judgment of 17
September 2007, the Court of First Instance confirmed the
principles that must be respected by dominant companies."
Competition law expert Giles Warrington of Pinsent Masons, the
law firm behind OUT-LAW.COM, said that the previous successful case
against Microsoft is a crucial factor in the Commission's decision
to take a new one.
"The allegations made in this case raise similar issues to those
raised previously, supply of interoperability information and tying
software to the Windows operating system," he said. "In addition,
the Court judgment, and Microsoft's acceptance of it, is likely to
embolden the Commission in investigating alleged abuses of
dominance in the technology and technology-related fields."
In the Commission's previous case, Microsoft was eventually
ordered to make available a version of Windows with no media player
included because the automatic inclusion of the player was found to
have distorted the market for media playing software. Similar
arguments have been advanced about the inclusion of Internet
Explorer.
The Commission's action on Explorer is the result of a complaint
by small Norwegian browser company Opera. That company's chief
executive Jon von Tetchzner last week told OUT-LAW Radio why his
firm had taken on the software giant.
"Microsoft started by integrating Internet Explorer into Windows
some time ago and as a monopoly in the operating system market
Microsoft has to follow certain rules," he said. "By tying in
Internet Explorer, they have limited competition in the market. I
think this is part of normal antitrust laws; you can't tie items to
a monopoly product."
Microsoft said that it intended to cooperate with the inquiry.
"We will cooperate fully with the Commission’s investigation and
provide any and all information necessary," said a company
statement. "We are committed to ensuring that Microsoft is in full
compliance with European law and our obligations as established by
the European Court of First Instance in its September 2007
ruling."
The other branch of the investigation relates to the
interoperability of Microsoft systems, including its widely used
Office suite of software programs. That action arises from a
complaint by the European Committee for Interoperable Systems, a
trade body representing technology companies that lobbies for
interoperability.
"In the complaint by ECIS, Microsoft is alleged to have
illegally refused to disclose interoperability information across a
broad range of products, including information related to its
Office suite, a number of its server products, and also in relation
to the so-called .NET Framework," said the Commission statement.
"The Commission's examination will therefore focus on all these
areas, including the question whether Microsoft's new file format
Office Open XML, as implemented in Office, is sufficiently
interoperable with competitors' products."
Warrington said that the action is part of a pattern, that the
Commission has been emboldened by its September court victory.
"Shortly after the publication of the Court's judgement in the
Microsoft case, the Commission announced that it had commenced a
formal investigation into allegations that US chipset manufacturer
Qualcomm had abused its dominant position by imposing unfair
licensing terms and conditions for use of its IP rights," he
said.
Warrington said that national competition authorities have also
taken note of the trend. "It is also rumoured that the Office of
Fair Trading has aspirations to bring a high-profile abuse of
dominance case along the lines of the Microsoft case," he said.
"Although this would not necessarily be in the technology field, it
is clear that the licensing of technology by companies with strong
market positions is currently something of a hot topic for
competition authorities."
Opera's von Tetchzner said that his small company took on
Microsoft because it felt that the issues were too important and
had to be acted on.
"Someone has to do it, right? I do believe the internet is just
such an extremely important place. You don't want it to be governed
by one company and again you definitely don't want a company that
is strong in one market to be able to just take this market as
their as their own," he said. "I just think we want to make sure
that the internet stays open and free and that is something we will
work very actively for."
