Luxembourg, 28/06/2004 (Agence Europe) - As reported in EUROPE (see bulletin of 25 June, p.15), Microsoft lodged an appeal at the Court of First Instance of the EU to request that the President of the Court, Bo Vesterdorf, suspend by interim order the Commission's decision of 24 March taken against it (which was to apply until the Court announced its judgement confirming or quashing the decision, in three or four years). The European Commission has itself announced that it would be freezing its decision, applicable from now. Experts predict that this will apply until next autumn.
EUROPE recalls that under the terms of the Commission decision of 24 March, Microsoft was to pay a fine of 497 million euros for exploiting its dominant position, and to undertake two obligations: to market a version of its Windows operating system disassociated from its Media Player by 28 June, and to divulge its documentation on “interoperability” by 27 July.
The appeal which Microsoft has lodged comprises two parts. The first consists in asking Bo Vesterdorf to declare an interim order; the second request a suspension of the Commission decision until such an order is pronounced, since the appeal procedure does not automatically lead to a suspension.
After receiving the Microsoft appeal last Friday, Bo Versterdorf asked the Commission if it had decided to oblige Microsoft to undertake its “Media Player” obligation when the deadline came around this Monday, 28 June.
In a communication sent to the press on Sunday, a spokesperson for Commissioner Monti said that the Commission had informed the Court that it had decided not to enforce the remedies adopted against Microsoft in the decision of 24 March.
All observers agree that the interim order could not be declared before the autumn for two reasons: the summer break at the Court and, above all, the fact that the procedure would have to follow a set pattern. This procedure entails obtaining written observations on the file from the Commission and satisfying the Computer and Communications Industry Association and now also Realnetworks, which want to intervene on the part of the Commission against Microsoft (the conditions of such an intervention depending on the President of the Court). Bo Vesterdorf also has to fix a date for the hearing before giving his decision.
The fact that the decision has been frozen, probably until next autumn, means that the obligation for Microsoft to divulge its “interoperability” documentation by 27 July is also frozen.
Microsoft's appeal does not relate to the fine of 497 million euros. Like any company, Microsoft can put up a bank guarantee instead of paying the fine directly as a result of lodging the appeal at the Court (its appeal on the basis of the case, that is the request for the cancellation of the Commission decision of 24 March, dates from 8 June (see EUROPE of 8 June, p.14)). Microsoft decision whether to pay the fine or put up a bank guarantee therefore depends on its internal financial strategy.