Luxembourg, 25/04/2006 (Agence Europe) - The Court of First Instance continues to hear Microsoft, the European Commission and their respective supporters at the hearing in which Microsoft challenges the Commission's decision of 24 March 2004 condemning it for abuse of dominant position, and requests that the decision be cancelled. Debates were scheduled for Monday and Tuesday on one of the measures taken by the Commission: - to force Microsoft to offer to PC manufacturers a version of its Windows client PC operating system without Windows Media Player. On Wednesday and Thursday, debates will focus on the arguments put forward by the parties on the obligation placed on Microsoft to divulge information concerning interoperability. Friday will be focused on Microsoft's request to cancel the fine of €497 million imposed on it by the Commission for abuse of dominant position. Lawyers working for Microsoft have now pointed out that the Commission committed errors of fact and law and that it should have considered the advantages of a Windows version linked to Windows Media Player. It was a mistake, they say, to impose marketing of a Windows version without Media Player that “no one buys”. The Commission sticks to its objections and continues to believe that Microsoft has abused its dominant position on the software market.
All parties that asked to intervene from the outset of court action, when it was at the stage of Microsoft's request for provisional measures, and who supported the American group, are present during proceedings. There is the Computing Technology Industry Association whose representation in the information technology sector allowed it to intervene at the beginning of the ongoing procedure. The Commisson had challenged its right to intervene but had not been followed up on this by the president of the Court, Bo Vesterdorf. The Commission did not, however, raise any objection to support to Microsoft from the Association for Competitive Technology whose members are active in the conception of software, system integration and electronic trading. Faithful supporters for Microsoft are: - the Italian TeamSystem and Norwegian Mamut, who said in 2004 that the marketing of the Windows operating system without Windows Media Player could affect their activities as software designers and trigger the beginning of the fragmentation of the Windows operating system; and Exor, the editor of the Swedish web pages whose largest client, the Swedish Employment Agency, uses technology conceived for working solely with the Windows system platform integrating Windows Media Player. Also, British Tandberg Television, which uses technologies conceived for working with the same platform, and Quantel, which provides IT material for television and cinema. British Pace Micro Technology, which is active in set-top box digital television technology, also gained permission to intervene in support of the American group, as did the Swedish televised products diffuser, MPS Broadband. The contribution that they are making to the proceedings, albeit at varying degrees, is legal as well as factual and fuels the highly technical debate commenting on the Commission's decision.
The European Commission also has its supporters but, unlike Microsoft, those speaking out in its favour now are practically no longer the same as in the beginning. There is still of course Software & Information Industry Association, which had asked to intervene as soon as preliminary proceeding started. This is no longer true of RealNetworks which initially supported the Commission but whose withdrawal was approved by the Court of First Instance on 19 January 2006. This decision was not made public until early in the week by the Court of First Instance. This is not true either for American Novell, which, in 2004, presented itself as an ally of the Commission for which it had played an active role. At its request, its name was withdrawn from the Microsoft affair in December 2004, three months after having been granted the possibility to intervene. The Commission has also had to do without the support of Computer & Communications Industry Association, which is no longer on the list of those speaking in its favour.
On 28 April 2005, a ruling by Judge Legal, president of the Fourth Chamber of the Court of First Instance, granted the European Committee for Interoperable Systems (ECIS) the right to intervene with the Commission despite the opposition expressed by Microsoft, which felt that ECIS did not meet the criteria set for taking part in court action before the Court of First Instance. Judge Legal had also given authorisation for support to be given to the Commission by AudioBanners.com and Free Software Foundation Europe.
We recall that, on 22 December 2004, the president of the court, Bo Vesterdorf, had rejected Microsoft's request for provisional measures. Microsoft wished to suspend the Commission's decision pending the Court's ruling (probably not before 2007). Hence the current and parallel negotiations between the Commission and Microsoft for implementation of this decision.