Brussels, 13/05/2008 (Agence Europe) - Last Friday, world leading computer company Microsoft Corp asked the European Court of Justice to annul the €899 million penalty payment imposed by the Commission in February for Microsoft's failure to comply with the Commission's antitrust decision. “We are filing this appeal in a constructive effort to seek clarity from the court,” said Microsoft in a press release, without giving further explanation. The Commission said it was confident. “According to a spokesman for Competition Commissioner Neelie Kroes, “The Commission is confident that the decision to impose the fine is legally founded”.
Microsoft is seeking to have the Commission decision of 27 February overturned. This decision states that the company had failed to comply with a previous Commission decision and imposed a daily penalty payment for the relevant period. In 2004, the Commission fined Microsoft and ordered it to make information available to competitors, at “reasonable” conditions, to allow them to make their software compatible with certain Microsoft systems. Microsoft flouted this decision (although it paid a €497 million fine) and continued to charge excessive rates for a period of 488 days - from 21 June 2006 to 21 October 2007 - the Commission said in February (see EUROPE 9611). The total penalty payment for this period, excluding the original fine, was calculated to be €899 million. That is what is at issue in the present case. The Commission is happy with the tariffs in place since October 2007.
According to specialists, Microsoft is likely to put forward several arguments, the most important of which being that the Commission never indicated what tariffs would be “acceptable” for access to compatibility information: it only rejected the tariffs proposed during the period in question, without making any counter-proposals. Other procedural points could also be raised, in particular, the fact that the Commission based its decision on reports drawn up by a trustee whom it engaged, and whose post was annulled by the Court of First Instance in September 2007 (see EUROPE 9503). The company managed, however, to find a “reasonable” tariff in the month following the judgment which found against it on the merits of its case (apart from the decision on the trustee). It should also be noted that the termination of the post of trustee does not apply retroactively.
This case only refers to so-called “information” licences, and does not affect either the “patents” licence or sanctions relating to activities before 21 June 2006. Microsoft's behaviour between December 2005 and 20 June 2006 has already been sanctioned by the imposition by the Commission of penalty payments totalling €208.5 million, on 12 July 2006. Total fines and penalty payments imposed by the Commission on Microsoft currently amounts to €1,676 million. The Commission has also launched a further, quite separate, investigation on information provided by the company on compatibility with its Office software, and on “linked sales” of Explorer software with the Windows system (see EUROPE 9580). This investigation follows complaints from the European Committee for Interoperable Systems (ECIS) and the British IT market watchdog. (C.D.)