EU Redo: Microsoft antitrust case back to square 2?

EU Redo: Microsoft antitrust case back to square 2?

Summary: OK.  So, the European Union's antitrust case hasn't gone quite back to square one.

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TOPICS: Legal
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OK.  So, the European Union's antitrust case hasn't gone quite back to square one.  In fact, it's not even clear what square it has gone back to.  But, in what appears to be a case of history repeating itself,  it has definitely gone back. 

Reminiscent of how a new judge was assigned to the Microsoft antitrust case in the U.S. after one of the first judges to try the case (Judge Thomas Penfield Jackson) made public statements that left critics wondering whether his personal bias played a role in his findings and decision (the one to break Microsoft up),  it looks as though the EU's case is headed down a similar path.  Only this time, the assignment of the new judge (or perhaps judges) is most definitely connected with the existing judge's public statements.  

According to a Reuters report,  the top judge of the European Union's second-highest court has proposed the change after internal court criticism was directed at the current judge because of a controversial article he wrote.   In that article, EU Judge Hubert Legal (yes, "Legal" is his last name) labeled some members of the Court's staff as "ayatollahs of free enterprise" that may be going too far in wielding "arbitrary power."  Wrote Legal, "Nothing is as distressing as the display of arbitrary power substituting a new assessment that is not necessarily more fitting or better law, nearly always made by people who know less about the file, in place of the judgment of people with a profound knowledge of the situation."

On the heels of Legal's statements,  EU Court of First Instance President Bo Vesterdorf has proposed a transfer of the case away from Legal and his panel to a larger panel which Vesterdorf will head.  So far, no one is quite sure how this mid-course change of direction will impact the final outcome -- originally on target for closure by mid-2006.  It could swing the case in Microsoft's favor, or swing it against.  Although the proceedings bear a striking resemblance to what happened when the US Court of Appeals remanded Circuit Court Judge Penfield Jackson's decision back to the Circuit Court (resulting in the assignment of a new Circuit Court judge), the Appeals Court made it clear that its decision had nothing to do with the public statements made by Penfield Jackson and that it only took his official findings of fact and final decision based on those findings into consideration.  In 2000, after he held that Microsoft had violated US antitrust law, Penfield Jackson likened Microsoft to a drug-dealing gang and Bill Gates to Napoleon.   

Topic: Legal

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9 comments
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  • I can't believe a judge doesn't know better.

    Regardless of why he said what he did, it's just not done when you are involved with a high profile case like this. If anything most judge's would go to extreme lengths to make certain their personal views have nothing to do with the case nor to give the APPEARANCE their personal views could influence the case.
    No_Ax_to_Grind
    • Better than what?

      If you read the original material from the judge himself, it was a policy piece. It had nothing to do with the MS case as such.

      Judges [b]are[/b] allowed to comment in general on the workings of the court system. I know this may come as a surprise, but I can assure you it's quite true.

      OK, you may not find those assurances persuasive. If you really want to make an issue of it, I can provide references to articles and speeches by both US and European judges, including chief justices.
      Yagotta B. Kidding
      • It would seem you are wrong...

        ---"Judges are allowed to comment in general on the workings of the court system. I know this may come as a surprise, but I can assure you it's quite true."---

        And they can be replaced for doing it at an inappropiate time. Or didn't you understand that is exactlly what happend with Judge Jackson and now this Judge...

        Rule for judge's, keep your mouth shut when you are in the middle of an important trial...
        No_Ax_to_Grind
        • When is the right time?

          [i]And they can be replaced for doing it at an inappropiate time. Or didn't you understand that is exactlly what happend with Judge Jackson and now this Judge...[/i]

          Jackson commented on the actual trial before his court, not on the system in general. Slight difference.

          Perhaps you'd care to tell us when [u]is[/u] an appropriate time, considering that there are always several hundred cases on a Federal District Judge's docket?

          [i]Rule for judge's, keep your mouth shut when you are in the middle of an important trial.[/i]

          Here's a hint: the law doesn't have an "important trial" category.
          Yagotta B. Kidding
          • It would appear to be obvious...

            This was NOT the right time. But hey, arguing with me won't do anything for ya. How about you argue with the EU court system. Yeah, there you go...
            No_Ax_to_Grind
          • Translation: "Obvious"

            adj.: "I can't back up what I'm saying, so I'll pretend I don't have to."

            Try again, Don. Unless you're just trying to run out the thread you could post to the grandparent.

            Oh, and another clue? Not everyone bases their lives around Microsoft's legal entanglements. The Court of First Instance [b]always[/b] has several antitrust cases before it, so as Hillel asked: "if not now, when?"
            Yagotta B. Kidding
          • What's to back up? The judge has been kicked.

            Not my decision, I had nothing to do with it, the results are obvious. (Judge - Curb) Now what part of that is something you can't grasp?
            No_Ax_to_Grind
  • Square 3 at least

    Keep in mind that the original stay was denied by President Bo Vesterdorf himself, not by Judge Legal. This case isn't bouncing nearly as much as the US one did.
    Yagotta B. Kidding
  • No Vesterdorf is way out of line

    You don't undermine a fellow judge like this in the middle of a trial, it makes the court look weak and sends the wrong signal to corps coming before the court of first instance.

    Legal's comments were spot on, Clerks shouldn't behave like "ayatollahs of free enterprise", and the court of first instance is a review not a rewrite court. Vesterdorf has given no indication that he disagrees with this sentiment.

    The only person trying to link his comments to the Microsoft case is Vesterdorf and a few pundits reviewing the case. He should withdraw his request and apologise for undermining one of his judges.
    Nigel Johnstone