EU and US regulators exchanged criticisms over the CFI’s recent decision to uphold the EC’s 2004 ruling against Microsoft Corporation. The EC held that Microsoft abused its dominant position by refusing to supply its competitors with “interoperability information” necessary to develop competing work group server operating systems and by tying the Windows Media Player to the Windows operating system. As remedy, the EC ordered Microsoft to disclose to competitors its communication protocols and to offer for sale a version of the operating system without Windows Media Player. It further ordered Microsoft to pay a €497 million fine.

Immediately following the CFI’s decision, Assistant Attorney General for the DOJ’s Antitrust Division, Thomas O. Barnett, issued a statement voicing concern over the legal standard endorsed in the Microsoft case. Barnett stated that “the standard applied to unilateral conduct by the CFI, rather than helping consumers, may have the unfortunate consequence of harming consumers by chilling innovation and discouraging competition.” According to Barnett, in the absence of demonstrable consumer harm, all firms including dominant firms should be encouraged to “add features to its popular products or license its intellectual property to rivals, or to refuse to do so.”

Responding to Barnett’s remarks, EU Competition Commissioner Neelie Kroes promptly fired back, stating: “It is totally unacceptable that a representative of the US administration criticized an independent court of law outside its jurisdiction.” “The European Commission,” Kroes continued, “does not pass judgment on rulings by US courts, and we expect the same degree of respect.”