President Vesterdorf retires with a bang by handing down a mega long judgment comprising 1373 paragraphs and running to over 270 pages in Case T-201/04 Microsoft v. Commission finding that the Commission was right to conclude that :
- Microsoft had abused its dominant position on the work group server operating system market by refusing to supply its competitors with ‘interoperability information’. The Commission required Microsoft to disclose the ‘specifications’ of its client/server and server/server communication protocols to any undertaking wishing to develop and distribute work group server operating systems,
- Microsoft had also abused its dominant position on Windows PC operating system market by tying the Windows Media Player with the operating system itself. The Commission required Microsoft to offer for sale a version of Windows without Windows Media Player.
Because those aspects of the judgment are sure to be covered elsewhere extensively there is no need to go into any greater detail now.
One aspect of the judgment is particularly interesting. That is the bit concerning the appointment and powers of the trustee (for the decision, see here and further information, here). To assist it in monitoring Microsoft’s compliance with the decision, Commission appointed a monitoring trustee. His primary responsibility was to issue opinions, upon application by a third party or by the Commission, or on his own motion, on whether Microsoft was complying with the decision and on any issue that might be of interest with respect to the enforcement of the decision. He was to have access to Microsoft’s assistance, information, documents, premises and employees and to the source code of the relevant Microsoft products. All the costs associated with the monitoring trustee, including his remuneration, were to be borne by Microsoft.
The Court of First Instance held that the Commission exceeded its powers by establishing the mechanism of a monitoring trustee with his own powers of investigation and capable of being called upon to act by third parties. Consequently, the Court of First Instance annuls the decision in so far as it orders Microsoft to submit a proposal for the appointment of a monitoring trustee with the power to have access, independently of the Commission, to Microsoft’s assistance, information, documents, premises and employees and to the source code of the relevant Microsoft products and in so far as it provides that all the costs associated with that monitoring trustee be borne by Microsoft.
The Court of First Instance found that the Commission has no power to compel Microsoft to grant to a monitoring trustee powers which the Commission itself is not authorised to confer on a third party. It also held that there is no provision of EC law that authorizes the Commission to require an undertaking to bear the costs which the Commission itself incurs as a result of monitoring the implementation of remedies.
The question is how the Commission will implement the judgment as far as the monitoring trustee is concerned and how much of the aftermath of the decision is contaminated.