Introduction

The Commission sent a statement of objections to Microsoft in January 2009 accusing Microsoft of abusing its dominant position in the PC operating systems market by tying its web browser Internet Explorer with its dominant Windows PC operating system. Microsoft replied in April 2009, but in an unusual move chose not to attend an oral hearing. Its decision was taken in the context of a growing list of opponents who were keen to support the Commission’s case (among them, Mozilla, Google and an industry group representing the likes of Oracle, Sun and IBM). (See our May 2009 briefing for further details.)

Proposal from Microsoft

In July, Microsoft sent a proposal to the Commission aimed at remedying the antitrust concerns raised in the statement of objections. Under this proposal, Windows 7 would include Internet Explorer, but consumers would also be provided with a screen from which competing web browsers could be selected and installed as their default internet browser, disabling Internet Explorer. Microsoft also made proposals in relation to the disclosure of interoperability information that would improve the interoperability between third party and Windows products - a concern that has been voiced by the Commission but which is yet to be the subject of a formal statement of objections.

Following discussions with the Commission, Microsoft made certain amendments to its July proposal including giving greater information to consumers about web browsers, the features of each browser and improved user experience as well as agreeing to a review by the Commission to ensure that the proposals genuinely work to benefit consumers. On 9 October, the Commission announced that it would invite comments from consumers, software companies, computer manufacturers and other interested parties on the revised proposal. In nearly all cases, this means that the Commission is convinced that these remedies meet its concerns.

What next?

The consultation closes on 9 November 2009 and it will then be for the Commission to decide whether to accept Microsoft’s commitments. If it does, the “browser” proposal would become the subject of a binding decision from the Commission but the “interoperability” proposal is likely to remain an informal settlement, since no formal case has been opened by the Commission on this matter. Will such an informal (unenforceable) arrangement satisfy Microsoft’s opponents? If it does, 2009 could mark the beginning of the end of Microsoft’s travails with the Commission.