MEMO/07/420

Brussels, 22nd October 2007

Antitrust: Commission ensures Microsoft’s compliance with the 2004 Decision - frequently asked questions
(see also IP/07/1567)

Is Microsoft now in full compliance with the 2004 Decision?

In line with the 2004 Decision Microsoft now provides the interoperability information on reasonable and non-discriminatory terms. The interoperability information made available by Microsoft also appears to be complete and accurate to an extent that a software development project can be based on it. Therefore, the Commission considers that Microsoft is now complying with its obligations under the 2004 Decision. However, licensees may raise additional issues when they obtain access to the information and Microsoft must keep the interoperability information updated and fix errors on an ongoing basis.

Will the Commission now stop imposing daily penalties on Microsoft?

As from today Microsoft has established compliance with the 2004 Decision. There is therefore no reason to impose further penalties on Microsoft as from today. However, the Commission will also issue as soon as possible a formal decision regarding the non-compliance issues raised in the statement of objections of 1st March 2007 (see IP/07/269). However, it would be inappropriate to prejudge at this stage the scope of any finding of past non-compliance or the amount of any definitive fine that may be imposed.

How do consumers benefit from this development?

Microsoft's compliance with the 2004 Decision will finally allow the development of interoperable work group server operating systems. This will lead to more innovation and give consumers more choice and better-priced products.

What happens if problems emerge with Microsoft's compliance in the future? How can the steps taken by Microsoft to comply with its obligations under the Commission’s 2004 decision be enforced?

This is not a "settlement". The Commission has ensured that Microsoft complies in full with the requirements of the 2004 Decision.

Thus, the Commission retains its full powers to ensure continued compliance with the 2004 Decision. The Commission can, if it observes a compliance problem in the future, once again impose daily penalty payments on Microsoft.

The Commission will continue to monitor Microsoft’s compliance efforts, in particular as regards the updating of the interoperability information.

Third, compliance may also be ensured through private enforcement. Under the “No Patent” licence agreement that Microsoft will conclude with developers, Microsoft warrants that it makes complete and accurate interoperability information available and accepts that licensees can obtain effective remedies, including damages, for breach of this warranty. Licensees therefore have means of enforcing Microsoft’s obligations under the 2004 Decision directly before the High Court in London, because the license agreements are subject to English law, without the Commission's intervention.

The licence agreement will establish a binding contractual relationship between Microsoft and the licensees. Litigation on contractual disputes is within the competence of national courts and it is quite normal for contracting parties to specify the applicable law and judicial forum in their agreements.

Why is the interoperability information so important?

As recently confirmed by the Court of First Instance in its Microsoft judgment (see CJE/07/63 and MEMO/07/359) the interoperability information, i.e. the interface information of how to “communicate” with Microsoft’s PC and server operating systems that Microsoft refused to disclose to its competitors, is vital for them to viably compete in the market for work group server operating systems and to be able to bring innovative products to that market.

What is “open source” software?

Open source software is software that can be freely copied, modified and distributed by its recipients. Some software companies derive revenue from offering services together with this freely available software.

Why is it so important that open source software developers can use the interoperability information?

Software developers that follow the open source business model and develop work group server software for the open source Linux operating system are Microsoft’s main competitors in this market. Access to the interoperability information allows them to compete on the merits of their products with Microsoft.

Can open source software developers implement patented interoperability information?

Open source software developers use various “open source” licences to distribute their software. Some of these licences are incompatible with the patent licence offered by Microsoft. It is up to the commercial open source distributors to ensure that their software products do not infringe upon Microsoft’s patents. If they consider that one or more of Microsoft’s patents would apply to their software product, they can either design around these patents, challenge their validity or take a patent licence from Microsoft.

Will the Commission investigate other allegedly anti-competitive behaviour of Microsoft?

The Commission will examine any complaint brought to its attention as regards alleged anticompetitive behaviour by Microsoft, including any complaints already filed. The Commission is committed to ensuring that Microsoft fully complies with its obligations under European competition law.
For further information see:

http://ec.europa.eu/comm/competition/antitrust/cases/microsoft/index.html