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European Commission


Brussels, 27 June 2012

Antitrust: Commission welcomes General Court judgment in Microsoft compliance case

The European Commission welcomes today's judgment by the General Court in case T-167/08 Microsoft v Commission – see statement by Vice President Joaquín Almunia (MEMO/12/498). The judgment essentially upholds a 2008 Commission decision imposing a penalty payment on Microsoft for not complying with the Commission's 2004 Microsoft Decision (see IP/04/382), which was upheld by the Court in 2007 (see MEMO/07/359). The judgment is the first in which the General Court has ruled on a penalty payment imposed on a company for non-compliance with an antitrust prohibition decision. The Court's ruling vindicates the Commission's efforts to ensure full compliance with its antitrust decisions, in particular the 2004 decision. As a result of the Commission's enforcement action, a range of innovative products have come to market that would otherwise not have seen the light of day.

The 2004 Microsoft Decision found that Microsoft had abused its dominant position in PC operating systems by withholding critical interoperability information from its competitors. This meant that providers of rival work group server operating systems were unable to compete effectively even though they were rated more highly by users than Microsoft's products on a range of parameters such as reliability, security and speed.

The Commission ordered Microsoft to disclose certain specified “interoperability information” on reasonable and non-discriminatory terms to vendors of work group servers, so that they could develop and distribute interoperable products.

The 2008 penalty payment decision (see IP/08/318), on which the General Court ruled today, was adopted under Article 24(2) of Regulation 1/2003 and found that, prior to 22 October 2007, Microsoft had charged unreasonable prices for access to interoperability documentation for work group servers and therefore did not comply with its obligations under the 2004 Microsoft Decision.

The General Court judgment

The General Court essentially upheld the Commission's main findings that Microsoft's pricing of interoperability information was not compliant with the 2004 Microsoft Decision, whilst reducing the penalty payment marginally from €899 million to €860 million. In particular, the General Court confirmed that in the absence of convincing evidence as to the innovative character of Microsoft's non-patented interoperability information, Microsoft's remuneration schemes prior to 22 October 2007 were unreasonable under the 2004 Microsoft Decision. In this regard, the General Court confirmed that allowing Microsoft to charge for merely interoperating with its dominant PC and work group server operating system – the very essence of the original abuse – would in effect allow it to transform the benefits of the abuse into remuneration.

The General Court reduced the penalty payment marginally to take account of the fact that although Microsoft was obliged to make interoperability information available to third parties, the Commission had allowed Microsoft to await the General Court's judgment on the Commission's 2004 Decision before allowing the actual distribution of interoperable products by open source developers.

This judgment confirms that non-compliance with an antitrust decision constitutes serious misconduct which the Commission is entitled to sanction in order to compel compliance.

Following the 2008 penalty payment decision Microsoft has posted the interoperability information subject to the decision free of charge on its web site.

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