Luxembourg, 30/03/2004 (Agence Europe) - Microsoft's decision to lodge an appeal against the Commission's decision to condemn it for abuse of dominant position and to request interim measures with a view to suspending this same decision pending a ruling on the merit of the case has triggered the following judicial process.
It should be noted that the request for interim measures falls within the competence of the president of the EU's Court of First Instance, Bo Vesterdorf. The request for cancellation of the decision is within the competence of the Court of First Instance itself.
Microsoft was fined and compelled to fulfil two obligations (see EUROPE of 19 March, p.7). Thus, it had imposed on it:
a) a fine of EUR 497 million which does not have to be paid immediately insofar as the company has lodged an appeal with the European courts. It can, under these circumstances, constitute a bank guarantee valid until a ruling has been made on the merit of the case, which, observers say, takes 3 to 5 years; and
b) the obligation to divulge documentation on "interoperability" within 120 days, and the obligation to market, within 90 days, a version of its Windows system without the Windows Media Player.
In theory, Microsoft should carry out these obligations once the time limit is over and can only suspend them in the assumption that it will win its interim proceedings (which takes several months).
In practice, the president of the Court of First Instance, Bo Vesterdorf, asks the Commission whether it agrees for the company not to fulfil its decision until the day when the interim order is given. The Commission may accept or refuse. In general it accepts. However, if it refuses, if Mario Monti wants to play tough and demands that the company fulfil the decision immediately, then the president of the Court of First Instance may, at the request of the company concerned, take a first interim measure suspending the Commission's decision throughout the duration of the interim procedure.
EUROPE recalls that, in order to give an interim order, the president of the Court of First Instance must verify that, at first examination, the appeal is not unfounded and that it is a matter of urgency. It must also weigh up the interests at stake.