Luxemburg, 02/05/2006 (Agence Europe) - The Microsoft trial ended on Friday 28 April, late in the afternoon, with the Commission's response to Microsoft's arguments over the fine of 497 million euro imposed in the Commission's 2004 decision for abuse of dominant market position (see EUROPE 9182). The Commission wanted the Microsoft arguments to be rejected because they failed to establish that the Commission erroneously found that there had been an infringement of competition rules. The fine represented 1.62% of Microsoft's turnover for the year to 30 June 2003, well below the 10% permitted in regulation 17, said the Commission. It also said it had not made an error in calculating the basic fine and that it could legally justify its later application of a multiplier of two to the starting amount to arrive at the final figure. The starting amount represented less than 1% of the turnover for the year in question, which would not have made the fine a sufficient deterrent. European Court case-law, said the Commission, allowed it to apply a multiplier for large firms to ensure the fine had a deterrent effect. These heavy fines were necessary to ensure that firms did not repeat the same infringements and also to dissuade other companies “of similar size and resources” from committing comparable infringements.
Judge-rapporteur John Cook again asked a series of questions on the role and remuneration of the independent monitoring trustee whose role it was to monitor Microsoft's compliance with the Commission's decision. The basis of Microsoft's arguments was that the powers delegated by the Commission to the trustee were enforcing powers normally belonging to the Commission. Microsoft pointed out that it is written in a footnote to this decision that the trustee would be not only “reactive” but would play a “proactive” role in the monitoring of Microsoft's compliance. This meant, according to the American group, that the decision sought to establish an independent source of investigatory and enforcement action, when the EC treaty and EC competition regulations confer these powers exclusively on the Commission or national competition authorities, and neither allows the Commission to delegate its powers to third parties or private persons. Microsoft accepted that the Commission had the right to be advised on technical questions. However, it challenged Article 7 of the Commission's decision which, it said, required it to bear the full cost of establishing the monitoring trustee, including his remuneration. According to competition law, in Microsoft's opinion, the Commission could not impose pecuniary charges other than fines and periodic penalty payments.
The Commission retorted that Microsoft's arguments were speculative and premature. It also pointed out that, in its decision, Microsoft was called on to submit a proposal for the establishment of a monitoring mechanism, while reserving to the Commission the right to impose such a mechanism. Article 7 of its decision did not set out the independent monitoring trustee's exact functions or his “source” of remuneration. It was up to Microsoft to propose a narrower scope of action for the trustee and different remuneration arrangements. The Commission would then have been free to reject those suggestions and impose a differently worded mandate by decision, it said.
The Commission claimed its decision provided for “a consensual mechanism” to permit the rapid resolution of a number of the technical issues likely to arise regarding the implementation of the remedies. The requirement to remunerate the trustee was based on regulation 17 empowering the Commission to require firms to bring an infringement to an end.
The highly technical nature of the debate will not necessarily be reflected in the ruling to be delivered by the grand chamber of the Court of First Instance. This ruling will not be given before 2007 and perhaps even towards the end of the year. Unlike the Court of Justice, the Court of First Instance has no advocates general. In the meantime, talks between Microsoft and the Commission to implement the 2004 decision will continue, Microsoft having failed to persuade the President of the Court that it should be suspended until the ruling is delivered.