Microsoft 'not ruling out' further antitrust appeal

Critics might be celebrating but Microsoft has refused to be drawn on whether it will appeal a European court's decision to uphold the EC's antitrust ruling
Written by Colin Barker, Contributor on

Microsoft's general counsel, Brad Smith, said he is "not ruling anything out" as the company assimilates a landmark judgement by the European Court of First Instance.

Responding to the decision on Monday by the European Court of First Instance to uphold the majority of the European Commission's 2004 ruling that Microsoft had abused its market dominance, Smith pointed out that he has had only a few hours to take in the details of the decision.

Smith congratulated the court on the "hard work" that it had undertaken, but refused to put a time frame on when its work might be over. On the subject of a possible appeal, Smith said: "We have not made a decision yet." Smith added that he looked forward to working with the EU "in the days, weeks and months ahead".

Last year the European Commission imposed a financial penalty of €280.5m on Microsoft, arguing that it had dragged its feet over paying the original fine.

The key European Commission antitrust decision related to two areas of Microsoft's conduct. The first concerned "Microsoft's refusal to supply its competitors with 'interoperability information' and to authorise them to use that information to develop and distribute products competing with its own products on the work group server operating system market, between October 1998 and the date of adoption of the decision".

The European Commission required Microsoft to disclose the "specifications" of its client/server and server/server communication protocols to any organisation looking to develop and distribute work group server operating systems.

The second type of conduct was "the tying of Windows Media Player with the Windows PC operating system". 

Both of these elements of the European Commission decision were accepted by the Court of First Instance.

However, in the lesser part of Monday's ruling, the Court annulled certain parts of the European Commission's decision relating to the appointment of a monitoring trustee "which have no legal basis in Community law". Microsoft welcomed the last part of the judgement.

The market was split in its reaction to the overall decision, with some welcoming it and others seeing it as damaging for the industry. In the former category was the open-source file-and-print service Samba. "It is great news," said Jeremy Allison, Samba's co-creator. "We have had a glass of champagne already." But there is still work to be done, he said, on seeing exactly what it will mean for organisations like his.

Another company ready to welcome the decision was Linux distributor Red Hat. "Today's decision... is great news for innovation and consumer choice, both in Europe and around the world," said Matthew Szulik, chairman and chief executive of Red Hat, in a statement. "The Court has confirmed that competition law prevents a monopolist from simply using its control of the market to lock in customers and stifle new competitors."

Jim Zemlin, executive director of the Linux Foundation, echoed Szulik's comments, saying that "no-one wants to live in a world where Microsoft decides what is best for consumers".

Meanwhile, Jonathan Zuck, president of the Association for Competitive Technology, an organisation with ties to Microsoft, naturally took a different stance and argued that consumers and small businesses would be the losers after the Court's decision. "The [European] Commission just got a treat from the Court, but SMEs and consumers will actually foot the bill," he said in a statement. "While there still may be a silver lining, it will take several hours and days to get a true assessment of the implications for SMEs."

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