The Commission's 2004 decision to fine Microsoft €497 million
was backed by the Court of the First Instance of the European
Communities (CFI) and the judgment is widely regarded as having
strengthened the Commission's hand for cases it has subsequently
launched.
But an analysis of the decision by competition lawyer Adrian
Wood of Pinsent Masons, the law firm behind OUT-LAW.COM, found that
the case offers fewer comforts to the Commission than many have
assumed.
"There is still no real consensus on what [the Microsoft ruling]
tells us for the future," Wood told OUT-LAW Radio. "The ability to
have some form of over-arching broad set of principles was lost a
little bit and so in that sense there is a disappointment there. We
did not get crisp, clear, practical pointers for generic use."
The Commission has begun competition cases against Intel,
Qualcomm and a new action against Microsoft in recent months, moves
that have been seen as a reflection of its post-ruling confidence.
But Wood said it ought not to rely too heavily on a judgment seen
by some as flawed.
"In terms of the bundling of media player to the Windows
environment the CFI took on board all of the Commissions arguments
without question," said Wood. "I think there were certain elements
of the judgment where the Commission is going to hesitate somewhat
before relying fully on [it] as a way for going forward."
The new investigation into Microsoft will look into whether it
is legal for a company with its market dominance to include web
browser Internet Explorer with its Windows operating system. It
will also look at whether the operating system allows for enough
interoperability with other companies' software.
The case was sparked by a complaint from competing browser maker
Opera. That company's chief executive Jon von Tetchzner told
OUT-LAW Radio that he has every
confidence that the previous Microsoft case is a positive precedent
that he thinks will be followed.
"I think there are similarities. This is in some ways a very
similar case to the recent [one]," he said. "I think if anything
the browser case is even clearer. I do believe there are
similarities. We are expecting good results out of this."
The two cases are similar: both involve questions of the
interoperability of the Windows system and both rest on the
legality of software bundling. The previous case hinged on the
bundling of a media player with the system, the new case on the
inclusion of a web browser.
