Day 3 of Microsoft hearing

Microsoft today challenged the second aspect of the Commission's 2004 decision.

As already mentioned in the post on the first day of this hearing, according to the Commission's
decision (pdf: 1,42 Mb!), Microsoft had infringed Article 82 EC, first of all by bundling Windows Media Player with Windows, secondly by refusing to supply inter-operability information to its competitors. The former issue was discussed at the hearing the last two days, today the latter issue was on the agenda.

Microsoft lawyer
Ian Forrester told the Court that the Commission had condemned Microsoft “for not saying yes to a competitor who requests a huge amount of valuable, secret future technology.”

“Article 82 exists to sanction abuses and thereby enhance the process of competition, not to pursue a regulatory policy favouring one business model rather than another. This neutrality as to the outcome of the competitive process is all the more necessary in a fast moving high technology field.”, he argued.

Mr Forrester added that the decision was contrary to the ECJ’s judgement in
Case 418/01, delivered only a month after the Commission’s decision, in which the Court articulated several criteria to examine whether a company is required to share an idea on which it owns an intellectual property right.

The Commission denies that these criteria apply in every case. Commission’s lawyer Anthony Whelan argued that Microsoft’s refusal to share inter-operability information had hurt consumers by stifling innovation.

See also: Excerpts from Microsoft Opening Statement on Interoperability