Microsoft v. EC: In the European Courts

Abstract

On 22 December 2004, the President of the Court of First Instance (CFI) unequivocally rejected Microsoft's application to suspend the Commission's Decision in Case COMP/37.792, Microsoft of 24 March 2004 (the Decision) until the CFI rules on Microsoft's application to annul the Decision. The Decision found that Microsoft had abused its dominant position by refusing to supply critical interoperability information to competitors (the interoperability case) and by unlawfully tying the sale of its Windows Media Player ( WMP ) with its dominant Windows client PC operating system (Windows) (the tying case). The Commission imposed record fines of EUR 497.2 million and required Microsoft to disclose certain interoperability information to competitors to enable them to produce work group server operating systems that interoperate fully with Windows, and to offer a version of Windows without WMP pre-installed. Although the President was careful not to prejudge the outcome of Microsoft's pending annulment proceedings, he did nonetheless identify a number of questions that he considered would require close examination in these proceedings. These questions may be of more interest now that the President will be a member of the 13-strong panel of judges that will hear the annulment proceedings. This article considers the President's order (the Order) and some of its implications. Section I summarises the main aspects of the Order focusing on the President's reasons for rejecting Microsoft's case for suspension. Section II discusses the issues that the President considered would warrant careful assessment in the annulment proceedings. We also consider summarily the impact of the Order on the ongoing remedies discussions between the Commission and Microsoft. Section III offers a brief conclusion.