The European Commission has issued a statement in response to Microsoft’s announcement of its plans to separate Internet Explorer from its forthcoming Windows 7 operating system in the EEA. The Commission’s Statement of Objections in the pending antitrust case arising from Microsoft’s tying of the Internet Explorer web browser with Windows from 1996 onwards suggested that Microsoft should provide consumers with a genuine choice of browsers, particularly since over 95% of consumers acquire Windows pre-installed on a PC.
The Commission states that, in respect of sales of Windows to computer manufacturers which represent the substantial majority of sales, Microsoft’s proposal may represent a positive step. PC manufacturers will be able to choose whether to install Internet Explorer - which would be provided free of charge by Microsoft - a rival browser or indeed multiple browsers. If Microsoft’s conduct were held to be abusive, the proposal would be taken into account in determining the appropriate remedy to ensure genuine consumer choice. The Commission would nevertheless bear in mind the long-standing nature of the conduct in question and the possibility of Microsoft negating the potential positive effect on competition by other measures.
With regard to retail sales of Windows (which account for less that 5% of sales), the Commission was less positive. Rather than follow the Commission’s suggestion that it equip retail versions of Windows with multiple browsers, Microsoft instead proposes to supply the operating system without any internet browser. The Commission stated that this would appear to provide consumers with less choice, not more.
The Commission issued its Statement of Objections on 15 January 2009 and Microsoft submitted its response on 28 April 2009. The Commission is currently considering the evidence before it and a decision is expected to be reached in the near future. In 2007, the Court of First Instance upheld the Commission’s decision that Microsoft had abused its dominant position by among other things, tying its Windows Media player with the Windows operating system. A fine of €487 million was imposed and the remedies ordered by the Commission included the requirement for Microsoft to supply a version of Windows without Windows Media Player.