Yesterday’s post was of course supposed to be about Microsoft. The Court was in the news yesterday, and so was ECJBlog.com for that reason (see this website (in Dutch) of the NOS, the “news broadcaster” in the Dutch public broadcasting system (somewhat equivalent to BBC News)). So here is the post I wanted to publish yesterday on T-201/04.
In March 2004 the Commission adopted a decision (pdf: 1,42 Mb!), according to which Microsoft had infringed Article 82 EC (and Article 54 EEA) by committing two abuses of a dominant position: first of all, Microsoft’s refusal to supply inter-operability information to its competitors in order to allow them to develop products which could compete with those of Microsoft, and secondly, Microsoft's bundling of Windows Media Player with Windows: Windows could only be bought together with the Windows Media Player software.
Microsoft was imposed a €497 million fine and was ordered to offer a version of its Windows operating system without its Media Player (which became Windows XP Edition N).
A five-day hearing of appeal began yesterday before the Grand Chamber of the Court of First Instance, which consists of 13 Judges (see Article 16 of its Statute). At the first day, the judges listened to testimonies given by the laywers of both parties.
Jean-François Bellis, Microsoft’s lawyer, argued that the Commission had made “fundamental errors of fact and reasoning.”
“To take an analogy used by the Commission itself, the fact that laces are sold separately from shoes does not demonstrate that shoe manufacturers are engaged in a tying practice by selling shoes only with laces. One must still consider whether there is demand for shoes without laces,” Mr Bellis argued.
Mr Bellis stressed that not one PC manufacturer had shipped a PC with Windows XP N installed. Only 1,787 copies of Windows XP N had been ordered by retail shops, which represented less than 0,005 percent of all sales of Windows XP in Europe.
“The failure to offer a product which nobody wants cannot be an abuse. The media functionality in Windows does not foreclose competition, and its constant improvement is in line with what consumers, PC manufacturers and third party software developers expect from a modern PC operating system”, he argued.
But Commission's lawyer Per Hellstrom replied that these arguments were irrelevant, emphasising that consumers did not have a choice as to what kind media software they were offered.
"This is the world according to Microsoft where it decides what is best for consumers", he argued.
The hearing will take five days, but a decision is not expected to be delivered before late this year, or even early 2007.
For more information about the Court of First Instance and its Members, see my linkspage.