Next Monday is Microsoft day in Luxembourg, when the European Court of Justice decides whether or not to uphold the American software giant’s appeal against a fine and modifications imposed on the Windows operating system.
The appeal has taken three years after the then Competition Commissioner hit Microsoft in 2004 with a near half a billion euro fine, a demand the Media Player be unbundled, and that Windows be made more compatible with other systems. Stephen Kinsella is a lawyer close to the case. “It is difficult to assess whether the Commission made a mistake or not without having access to all the documents,” he said. “What we can say is that it is an incredibly complex case. The case began about 9 years ago and it shows the difficulty of applying competition law in a market that is moving so fast and is developing so rapidly.”
The stakes could not be higher for the Commission. While half a billion euros is pocket money for Bill Gates, a defeat for the Commission would plunge its entire anti-trust policy in the high technology domain into confusion. It also points out that Microsoft is the first company in over 50 years to ignore one of its decisions.
“The principle of scrutinizing patents and scrutinizing intellectual property, and to ensure that dominant positions are not being abused – and that is essentially what it is all about – is a perfectly valid and important principle and I think it is clear that the competition authorities will have more of these cases to deal with than less,” said
Malcom Harbour, a British Conservative European parliamentarian.
Microsoft has complied with the ruling that it must share data with competitors but an independant observer chosen by the firm itself says this has been inadequate.