Luxembourg/Brussels, 22/12/2004 (Agence Europe) - In an interim order, the President of the European Court of First Instance, Bo Vesterdorf, has rejected Microsoft's request for interim measures to suspend the remedies imposed on Microsoft by the European Commission on 24 March 2004, namely to provide interoperability information to competitors about Windows and selling an unbundled version of Windows (fully functional without Windows Media Player). Following this interim order, the Commission's March 2004 decision becomes effective immediately, unless Microsoft decides to appeal to the European Court of Justice for a rapid order whereby it can continue to not apply the Commission's remedies.
In his interim order, the President of the Court of First Instance (CFI), Bo Vesterdorf, argues has not shown that it might suffer serious and irreparable damage as a result of implementation of the contested decision and neither had Microsoft shown that the use of the information in question would end up diluting it or lead to Microsoft's competitors cloning its products.
Microsoft also failed to prove that it would have to radically change its sales policy or that the decision would lead to irreversible changes in the market. Bo Vesterdorf recognised, however, application for annulment was not at first sight unfounded and that the requirement that the applicant establish a prima facie case that some of Microsoft's arguments were well founded.
'Sme of Microsoft's arguments raise complex questions, such as the question of the anti-competitive effect of tying resulting from 'indirect network effects', which fall to be resolved by the Court of First Instance in the main action,' commented the President of the CFI< Bo Vesterdorf.
In 1998, US company Sun Microsystems lodges an appeal with the Commission in which it alleged that Microsoft had refused to provide it with the technology needed to allow interoperability of Sun Microsystems work group servers to achieve full operability with Windows PCs.
In 2001, the Commission included Windows Media Player to the proceedings, following an investigation opened in February 2000.
The European Commission immediately 'welcomed the order of the President of the CFI because it means that the Commission's March 2004 decision becomes effective immediately. Implementation of the Commission's March decision will … stimulate emulation.' A Commission spokesperson said it was not a matter of renegotiating with Microsoft because the decision was immediately effective, and there was no reason for the Commission to continue suspending its March 2004 measures. In response to a question, the spokesperson said that the Commission had the impression that Microsoft was prepared to respect the ruling without delay. On the question of whether Microsoft would appeal, the spokesperson simply said that he didn't see hwy Microsoft would not apply the Commission's decision.
Experts believe the Commission has power here because, on request from CFI President, it had agreed (purely out of politeness, it said) to not insist that Microsoft apply the remedies from March 2004 (a request for interim measures does not, in and of itself, suspend the original measures). But Microsoft still has the option of appealing against the decision of the President of the European Court of First Instance.
Microsoft's reaction
Microsoft issued an immediate statement from its offices in Redmond (Washington), noting that although the CFI had ruled against Microsoft's request for interim measures, 'we are encouraged that the Court has recognised that Microsoft has a number of powerful arguments that must be considered in the full appeal (in four or five years time, given the complexity of this case and the CFI's backlog, Ed.). 'We are hopeful that the issues highlighted by the Court will create an opportunity for the parties to discuss settlement… We continue to believe that the Commission's remedied will bring very few benefits to competitors and consumers in Europe,' explained Microsoft in its statement.