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Antitrust: Commission adapts nature of monitoring of 2004 Microsoft Decision
Commission Européenne - IP/09/349 04/03/2009
Brussels, 4th March 2009
The European Commission has adapted the nature of the technical assistance it receives to facilitate its monitoring of Microsoft's compliance with the Commission's 2004 Microsoft Decision (see IP/04/382 and MEMO/04/70). In light of changes in Microsoft’s behaviour, the increased opportunity for third parties to exercise their rights directly before national courts and experience gained since the adoption of the 2004 Decision, the Commission no longer requires a full time monitoring trustee to assess Microsoft’s compliance. In future, the Commission intends to rely on the ad hoc assistance of technical consultants.
Microsoft has an ongoing obligation to supply complete and accurate interoperability information as specified in the Commission’s 2004 Microsoft Decision. However, given that the original set of interoperability information has already been documented by Microsoft, increased opportunities through private enforcement provisions in Microsoft's license agreements for third parties to exercise their rights directly before national courts, and experience gained since the adoption of the 2004 Decision the nature of the technical assistance that the Commission requires is now of a more ad hoc character.
The Commission therefore considers that the ongoing monitoring that is still necessary can be performed more appropriately with the help of technical consultants who are available under a framework service contract to advise on issues that arise from time to time.
In line with this, the Commission has today adopted a Decision which removes the Trustee provision from the 2004 Decision and repeals the 2005 Trustee Decision which provided for the modalities of the monitoring mechanism and the appointment of a monitoring trustee. The Commission nevertheless highly appreciates the excellent quality of the work that the former monitoring trustee has provided since 2005.
In the 2004 Decision of 24 March 2004, the Commission found that Microsoft had infringed Article 82 of the Treaty and Article 54 of the EEA Agreement by refusing to supply interoperability information and by tying Windows Media Player with Windows (see IP/04/382). As a result, it imposed a fine and remedies aimed at bringing to an end the abuses in question.
Article 7 of the 2004 Decision provided for the establishment of a suitable mechanism to assist the Commission in monitoring Microsoft's compliance with that Decision, including a monitoring trustee who is independent from Microsoft.
By separate decision of 28 July 2005 (see IP/05/1215), the Commission established a monitoring mechanism that provided for the appointment of a monitoring trustee and stipulated that Microsoft had to bear the costs of remunerating the trustee and his operation.
On 7 June 2004, Microsoft lodged an application for the annulment of the 2004 Decision with the CFI. The judgment of the Court of First Instance of 17 September 2007 in Case T-201/04 partially annulled Article 7 of the 2004 Decision, in particular insofar as it provided that all the costs associated with the appointment of the monitoring trustee, including his remuneration, be borne by Microsoft and dismissed the remainder of Microsoft's application for annulment of this Decision.
See also http://ec.europa.eu/comm/competition/antitrust/cases/microsoft/ for a complete chronology of the case.