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Cases > Microsoft case

Implementation of the Decision

Microsoft’s Obligations

As regards interoperability, the Commission’s Decision of March 24, 2004 ordered Microsoft to disclose, within 120 days, complete and accurate interface information which would allow rival vendors to interoperate with Windows, and to make that information available on reasonable and non-discriminatory terms (Article 5 of the Decision).

As regards tying, the Commission’s Decision of March 24, 2004 ordered Microsoft to provide, within 90 days, a version of Windows which did not include Windows Media Player (Article 6 of the Decision).

On 25 June 2004, the Commission voluntarily suspended Microsoft’s obligations pending the outcome of Microsoft’s interim measures appeal of that date (see Court proceedings). Following the Order of the President of the CFI rejecting Microsoft’s interim measures application 22 December 2004, Microsoft was obliged to comply with its obligations pursuant to the Decision as of that date.

Role and appointment of Monitoring Trustee

The Decision foresees the establishment of an independent Monitoring Trustee, whose role is to assist the Commission in the monitoring of Microsoft’s compliance with the Decision. An implementing Decision of 28 June 2005 outlines the precise role and mandate of the Monitoring Trustee in this regard. This Decision can be consulted here pdf and further information is available in MEMO/06/119.

On 5 October 2005, the Commission appointed Professor Neil Barrett as the Monitoring Trustee. Professor Barrett is a renowned computer scientist, and was one of several candidates proposed by Microsoft for the position of Monitoring Trustee. Information on Professor Barrett’s appointment can be found in IP/05/1215 and Professor Barrett’s CV can be consulted here pdf.

Professor Barrett appointed Professors John McDermid (click here for CV) and David Parnas (click here for CV pdf) as technical advisors who will assist him in his tasks.

On 4 March 2009 the Commission adopted a Decision that deleted Article 7 of the original Decision of 24 March 2004 and repealed the implementing Decision of 28 June 2005. As a result, the office of Monitoring Trustee has ceased to exist. Among others, changes in Microsoft's behavior and the maturing status of Microsoft's interoperability disclosures have prompted this step. More information on the reasons for this adaptation of the monitoring mechanism can be found in IP/09/349.

Formal compliance proceedings

On 10 November 2005, following input from the Commission’s technical advisers (OTR) and an extensive market test, the Commission issued a Decision pursuant to Article 24(1) of Regulation 1/2003 ("the Article 24(1) Decision"). This decision concluded that Microsoft was not complying with its obligation pursuant to the Decision to: (i) supply complete and accurate interoperability information; and (ii) make that information available on reasonable terms. The Article 24(1) Decision warned that should Microsoft not be in compliance with this obligation from 15 December 2005, it would face a daily penalty payment of up to €2 million from that date.

Following the Article 24(1) Decision, Microsoft revised the interoperability information that it was obliged to disclose. However, on the basis of input from the Monitoring Trustee, the Commission’s preliminary view was that on 15 December 2005, Microsoft had still not supplied complete and accurate interoperability information. It therefore sent Microsoft a Statement of Objections on this point on 21 December 2005, and provided Microsoft with all the technical reports on which its conclusion was based. Information on the Article 24(1) Decision and the Statement of Objections can be found in IP/05/1695 and Art. 24(1) Decision pdf.

Microsoft replied to this Statement of Objections on 15 February 2006, and at Microsoft’s request, an Oral Hearing was held on 30-31 March 2006. Further reports from both the Trustee and the Commission’s technical advisers (TAEUS) indicating that revised versions of the interoperability information which Microsoft had submitted were still not complete and accurate were sent to Microsoft by way of two letters of facts on 10 March 2006 (see IP/06/298) and 19 May 2006. Microsoft was provided the opportunity to comment on all the relevant reports.

On the basis of an analysis of all the relevant evidence on the file, the Commission’s conclusion was that as of 20 June 2006, Microsoft has still not complied with its obligation pursuant to the Decision to supply complete and accurate interoperability information. Therefore, on 12 July 2006, the Commission adopted a decision pursuant to Article 24(2) of Regulation 1/2003 ("the first Article 24(2) Decision") imposing on Microsoft a penalty payment of €280.5 million for non-compliance with its obligations (€1.5 million per day for the period from 16 December 2005 to 20 June 2006).

This decision also warns that should Microsoft not be in compliance with its obligations from 31 July 2006, it is liable to face a daily penalty payment of up to €3 million from that date. Article 24 of Regulation 1/2003 entitles the Commission to impose such penalty payments not exceeding 5% of average daily turnover in the preceding business year per day. For further information see the IP/06/979 , MEMO/06/277, Art. 24(2) Decision pdf and the introductory remarks by Mrs. Kroes.

On 1 March 2007 the Commission, by means of a Statement of Objections, warned Microsoft of further penalties (of up to €3 milion per day) over its unreasonable pricing of the interoperability information (IP/07/269). Microsoft replied to the Statement of Objections on 23 April 2007 but waived its right for an oral hearing.

On the basis of an analysis of all the relevant evidence on the file, the Commission’s conclusion was that up until 21 October 2007 Microsoft had not complied with its obligation pursuant to the Decision to give access to the interoperability information on reasonable and non-discriminatory terms. Therefore, on 27 February 2008, the Commission adopted a decision pursuant to Article 24(2) of Regulation 1/2003 ("the second Article 24(2) Decision") imposing on Microsoft a penalty payment of €899 million for non-compliance with its obligations (the relevant period of non-compliance runs from 21 June 2006 to 21 October 2007).
For further information see the IP/08/318.

See the case documents page for the latest developments.

  
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