Background

The Commission accused Microsoft of abusing its dominant position in the PC operating systems market in January 2009 by tying its ‘Internet Explorer’ web browser to its ‘Windows’ computer operating system (see our previous briefing on this). In October 2009, Microsoft offered a remedy whereby users would be able to deactivate the Internet Explorer browser in Windows and choose an alternative browser.

The Commission reaches conclusions on browser choice

In a decision dated 16 December 2009, the Commission accepted legally binding commitments from Microsoft.

The Commission had been concerned that:

  • competition in the browser market was distorted by Microsoft tying ‘Internet Explorer’ to Windows, leading consumers to use it simply because of Microsoft’s distribution advantage in personal computers and not necessarily due to the merits of the product; and
  • Microsoft’s behaviour hindered innovation in the market by creating an artificial incentive for software developers and content providers to design their products or web sites primarily for Internet Explorer.

The approved commitments aim to address these concerns by offering an effective and unbiased choice of web browsers and by restoring competition on the merits in that market. For five years (through the Windows Update mechanism) Microsoft will offer European consumers a “Choice Screen” enabling users of Windows XP, Windows Vista and Windows 7 to choose which of its competitors’ web browser(s) they want to install in addition to, or instead of, Microsoft’s browser Internet Explorer. The browser Choice Screen software update will start in March 2010. The Commission has reserved the right to review these commitments in two years’ time. In addition, Microsoft is under an obligation to report regularly to the Commission starting in June 2010 on the implementation of the commitments and to make adjustments to the Choice Screen upon the Commission’s request.

…but Microsoft is still not completely off the hook

Despite Microsoft’s successful settlement of the browser investigation, the issue of disclosure of interoperability information still remains in the spotlight, with the Commission of the view that a refusal to disclose such information may also amount to an abuse of Microsoft’s dominant position. In July 2009, Microsoft had made proposals regarding disclosures of interoperability information between third party products and several Microsoft products, including Windows, Windows Server, Office, Exchange and SharePoint. Following intensive discussions with the Commission, Microsoft published on 16 December 2009 an improved version of the undertaking and related documents such as a patent license agreement on its website. This is seen as a positive step by the Commission to improve interoperability and it will be monitoring the impact of this undertaking on the market over the next few months before taking any decision relating to this investigation. Could this be the final episode in the Microsoft saga?