Microsoft cancels oral hearing in EC browser-bundling case

Microsoft cancels oral hearing in EC browser-bundling case

Summary: The first week of June was slated to be an interesting one, in terms of the current browser-bundling antitrust case in the European Union involving Microsoft, Opera and a growing cast of interested third parties. But Microsoft officials said they've canceled their request for the oral hearing slated for June 3-5.


The first week of June was slated to be an interesting one, in terms of the current browser-bundling antitrust case in the European Union involving Microsoft, Opera and a growing cast of interested third parties.

But Microsoft officials said they've canceled their request for the oral hearing slated for June 3-5. The reason for the cancellation is detailed in a May 21 blog post by Microsoft Associate Deputy General Counsel David Heiner on the Microsoft on the Issues" blog.

The short version of the explanation: Microsoft requested the hearing to be rescheduled because the company believed that a number of the potential attendees were going to attend, instead, the International Competition Network (ICN) meeting in Zurich, which is slated for those same dates, June 3 to 5. (The European Commission is the one who chose the Microsoft hearing dates, according to the Redmondians.)

Because of the overlap in the dates, Heiner blogged:

"(I)t appears that many of the most influential Commission and national competition officials with the greatest interest in our case will be in Zurich and so unable to attend our hearing in Brussels. We raised concerns about this scheduling conflict with the Commission the very same day we were notified of the proposed hearing date. We asked the Commission to consider alternative dates and expressed our serious concern that holding a hearing during the same days as the ICN would make it much more difficult for the Commission’s and Member States’ key decision makers to attend. We pointed out that there’s no legal or other reason that the hearing needs to be held the first week of June.  We believe that holding the hearing at a time when key officials are out of the country would deny Microsoft our effective right to be heard and hence deny our “rights of defense” under European law.

"Unfortunately, the Commission has informed us that June 3-5 are the only dates that a suitable room is available in Brussels for a hearing. Thus, the Commission has declined to reschedule the hearing despite our offer to find and outfit a suitable room ourselves at another time."

(An aside: When the hearing date originally was announced, Microsoft officials said the company's request for an oral hearing was a formality more than a given. “To preserve right to have a hearing, need to ask by time you file your response. No decision has been made yet on whether we will actually pursue although Commission has set a date for a hearing if we pursue,” a spokesperson told me in early May.)

So what happens now? Will the European Commission issue accelerate its final ruling -- which more than a few observers are expecting will be in favor of Opera and possibly involve a hefty fine plus un-bundling remedies, based on the wording of the EC's preliminary findings in the matter -- with no further input?

If Microsoft had been successful in getting the hearing rescheduled to a later date, a delay might have helped the company (at least to a degree), given summer recess schedules for the courts. But once it became clear the EC wouldn't let the Softies reschedule, why not just go ahead and argue their case? (The New York Times has another piece of information, re: why Microsoft may have tried to seek a delay: "Any delay in the Microsoft case could have extended the outcome beyond the reach of Ms. Kroes, whose future as the Europe’s top competition official will depend on the outcome of June 7 European elections.")

(Update: EC officials, in refusing Microsoft's request for a new date, said they consider Microsoft to have withdrawn its oral hearing request. Microsoft officials said they do not agree with the EC's characterization of their date-change request as a "withdrawl." Don't you just love lawsuits?)

What's your gut? Do you think Microsoft's decision to cancel the scheduled June oral hearing may end up hurting the company more than helping it?

Topics: Browser, Enterprise Software, Microsoft


Mary Jo has covered the tech industry for 30 years for a variety of publications and Web sites, and is a frequent guest on radio, TV and podcasts, speaking about all things Microsoft-related. She is the author of Microsoft 2.0: How Microsoft plans to stay relevant in the post-Gates era (John Wiley & Sons, 2008).

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  • Opera = Euro company

    Do you really expect the EC to rule AGAINST one of their own, regardless if it's Redmond or any other U.S. company?
    • Nope

      No chance Microsoft is going to win this one, no matter how ridiculous the entire thing is at this point. The market is handling the problem itself, with IE losing its share almost every day. Opera needs to realize that NO ONE CARES about their browser. Even if IE drops off the face of the planet, Firefox will still keep them locked away in obscurity. The EU is just doing this as a bit of chest pounding and showing that they look after their own. The juicy pile of undeserved cash sitting on the table that they get to keep for their enjoyment doesn't hurt either.
    • The main browser competitors are US companies. This is about competition on

      the merits, NOTHING more.
    • Don't be such a Muppet

      Here is a list of EU actions against EU business cartels :

      Lifts $1.3bn

      Plasterboard $475m

      Food additives $161m

      Chemicals $491m

      Vitamins $750m

      And there are plenty more. Nice to know that the US Government (under Bush) let you get ripped off by shyster and flywheel companies. Luckily for you the consumer, the Obama administration is looking to clean up your backyard.

      It doesn't matter where they are from, it matters how they do business in the EU and if that is to collude or operate to in a manner that is deemed to be illegally anti-competitive then they can pay the consequences.

      You may wish to read this from the DOJ

      Now stop reading the Daily Rabid Xenophobe and do some thinking for yourself.
      Alan Smithie
      • Opera is garbage & EU/EC will take anyones Money

        Opera uses proprietary code that breaks websites using industry standards. As long as they march to their own drum they will always be a niche player. The EU is looking for a big paycheck and MS knows it.

        Socialism is not cheap so they of course will take money from anyone anywhere in the world that can afford it. You know all those dirty wealthy companies that produce products and then sell them at a profit. They are so much worst than countries that steal others money and produce nothing. When will the blood sucking stop?
      • EU = Biggest and Worst Monopoly.

        That needs to be split one more time.
        They don't help common man. They make crybaby corporations of Europe more fat.
        Ram U
        • Crybaby corporations of Europe

          Great post! They are a Monopoly. They do these things in the name of the people but what person benefits from this.

          Those that produce write checks. Those that need get checks. Need has no value and does not deserve a check. This is called stealing.
          • Actually...

            ...a European poster supplied me with links that are a very interesting read. The EC's antitrust laws are not about protecting the consumer ("the people" in your post), they're about protecting other businesses, no matter how crappy, to promote the illusion of competition.
          • Actually... I stand corrected

            Oh! That makes much more sense. I'm a little confused because I thought socialism was about meeting the needs of the people. I guess they can?t even get that right. I?m not surprised.

            - Thanks for the correction. I have not read the information you speak of. Im sure its a good read.

            EC's antitrust laws:
            -If it exists - tax it
            -If it moves - regulate it
            -If it makes money - Fine it


          • That's laughable

            Coming from people who shill for the biggest IT monopoly on the planet.

            Poor sour grapes. Somebody is finally taking a stand against poor victimized predatory monopoly Microshaft. Boo hoo.

            LOL... :D
            Wintel BSOD
          • Your right - That's laughable

            Coming from a people that can?t compete because they have socialist mush for minds.

            You have 3 Choices the way I see it:
            -Work hard to create a better product at a better price
            -Don?t compete and loose market share
            -Or steal what you can?t create on your own - (EU?s Choice)

            This is not us complaining but recognizing the theft for what it is. Buy into the propaganda if you must but we over here like to work for our money not steal it.

            ?Poor sour grapes. Somebody is finally taking a stand against poor victimized predatory monopoly Microshaft. Boo hoo?

            Poor cousin (EU) asking for another dole payment from your working uncle (USA).

            Who has sour grapes?
          • You're laughable

            [i]Coming from a people that can?t compete because they have socialist mush for minds.[/i]

            No, we just oppose greedy, power-hungry monopolies run by capitalist pigs that refuse to work on a level playing field and put the almighty dollar above all else.

            I'm an American, btw. Let's hope the Obama Administration and the DoJ follow suit.

            [i]You have 3 Choices the way I see it:
            -Work hard to create a better product at a better price[/i]

            Especially when you have the playing field all to yourself. Then price-gouge and lock in the masses as a captive market so they can't escape from you.

            [i]-Don?t compete and loose market share[/i]

            What competition? What lost market share? When you're the only game in town, you can afford to put out mediocre, under achieving garbage like Viista.

            [i]-Or steal what you can?t create on your own - (EU?s Choice)[/i]

            Aww, poor baby. Tell that to Novell, Netscape, IBM and all the other victims of M$ past misdeeds.
            Wintel BSOD
      • Wrong Examples

        The examples are for collusions of price-fixing (which is deemed anti-competitive), none are of design-features.

        Try to find an example of a car company being fined billions for failing to make the rear seat optional (the poor consumer has to take what comes with the car).
        • Modus Operandi may be different

          But Mens Rea all the same by forming a cartel with OEM's and the channel
          Alan Smithie
        • How about the one about the software company...

          That refused to provide interoperability information to other software makers so that networked and inter-networked computers systems could work together? This information they did provide in the past, and then decided to withhold.

          Oh wait, that is Microsoft, and the EC both fined and forced them to stump up the information.

          Is that a good enough example?

          Or perhaps you'd prefer the car example where Ford and Firestone both screwed up on setting and getting tire options matched up with SUV's resulting in rollovers and deaths etc.
          • Is everyone in the EU a victim?

            Ya! They forced a company to share/Disclose proprietary information about their software. They did it with a gun to their head. Was that right? That was just another form of stealing.

            I have no clue how Ford making a mistake on tire usage or manufacture problems of a tire has anything to do with this argument. Frankly it?s a stretch. Nice try though!

            Is everyone in the EU a victim? I hope not.
          • Well, at least those in the EU...

            Seem to have a clue.

            Here's a hint. The EC's rules on business have been around for a long long time, and Microsoft knew what they were going in. They chose not to play by the only rules in town. You really should not be shocked/surprised/upset at Microsoft getting hammered by the EC regulators when they aren't doing what they are required to do by EC law.

            After all, you wouldn't expect to succeed in playing in the NBA if you tried to claim that they should play by some other set of rules would you?

            And lest you forget, the US and other jurisdictions have also found as points of their laws that Microsoft isn't doing what is required of them. So, stop the ignorant babbling, please.
          • Former MS victims, yes.

            But we're much further up the road in technology than our press release consuming friends across the water.

            Would a mouse designed especially for fat hands be progress? Probably, if that's the problem/solution which you see.
    • Yes of course

      For Gods sake stop the bigoted "I'm a badly done American attitude?" It does no matter who or where you are if you are right thats good if you are wrong thats bad thats what democratic true justice is all about.
      Richard Turpin
      • Justice? HA

        That would require that justice is being done. These antitrust lawsuits, both here in the US and in the EU are farces and a slap inthe face of justice. Market share is not determined by the is determined by the users. The argument that you can't replace IE is a crock of s**t and if you believe that argument, you are not quite as intellegent as I would hope you are as an IT person. Even back in Win 3.1 you could replace IE with Netscape with no problem. I used Netscape up until version 3 when AOL bought it and then it started to lag behind while IE forged ahead. I use both IE and FF as I am aweb developer and have to test in both. SO I know for a fact that, even for the average user, setting a differnt browser as your default browser is not a difficult thing at even get a popup that asks you when you install it if you want it to be your default browser. Lets at least be honest about this folks....which is something that has been completely lacking in this entire antitrust issue. The real issue is the fact that companies dropped the ball on thier own foot while MS provided features that people wanted. And no...I don't work for MS and don't even program with MS languages (I happen to dislike .NET).