By Peter Galli  |  Posted 2007-09-17 Print this article Print

: Fine Remains Unchanged"> The court also found that the commission "did not err in assessing the gravity and duration of the infringement and did not err in setting the amount of the fine. Since the abuse of a dominant position is confirmed by the Court, the amount of the fine remains unchanged." But, in the only part of the decision that went in Microsofts favor, the court set aside the requirement that a monitoring trustee be appointed, saying this has no legal basis in community law.
"The Court criticizes, in particular, the obligation imposed on Microsoft to allow the monitoring trustee, independently of the Commission, access to its information, documents, premises and employees and also to the source code of its relevant products," the court said.
The problem here is that there was no time limit set for the trustees oversight, and Microsoft was expected to pay all the costs associated with that trustee, the European Court said. "The [European] Commission has no authority to compel Microsoft to grant to a monitoring trustee powers which the Commission itself is not authorized to confer on a third party," it said, adding that "there is no provision of community 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." Microsofts Smith said the ruling on the trustee was a nice—though somewhat small—victory. "We appreciate the courts judgment on the trustee issue and the monitoring mechanism, an issue where the court agreed with us, and yet I would be the first to acknowledge that I dont think anyone would say that is the most important part of this case or this decision," he said. The appeal of this decision by Microsoft is also limited in scope, the European Court said. "An appeal, limited to points of law only, may be brought before the Court of Justice of the European Communities against a decision of the Court of First Instance, within two months of its notification." More information on the courts decision and its history can be found here. Read here why the Department of Justice says the Microsoft antitrust settlement does promote competition. Lars Liebeler, the antitrust counsel for industry body CompTIA (Computing Technology Industry Association), in Oakbrook Terrace, Ill., criticized the decision, saying it represents a significant blow to free enterprise in Europe. "Rather than supporting Europe as the innovation capital of the world, the Commissions policies unchecked may turn the EU into the litigation capital of the world," he said in a statement released Sept. 17. The courts decision encourages competitors to bring legal action against one another rather than compete aggressively in the marketplace, Liebeler said, adding that the court has made it clear that government officials will play a central role in determining the contours and direction of technology markets and the design of products in those markets, even if that involvement is contrary to consumer wishes, rather then focusing on the fundamental principles of consumer choice and market economics. Smith noted that much in the world and the industry has changed since the case started in 1998, and that Microsoft changed as well. "We sought to underscore that over a year ago when we published what we described as our Windows Principles, principles intended to ensure that future versions of Windows, starting with Windows Vista, would comport not only with the principles of U.S. law but with the principles that are applicable here in Europe as well," he said. "Weve sought to be open and transparent, and weve sought to strengthen our ties with the rest of our industry. Indeed, its notable that just last week we announced a new agreement with Sun Microsystems, and the week before that we announced a new agreement with Novell, two of the companies that started out on the other side of this case almost nine years ago. "A lot has changed, but I will say that one thing has remained constant, and will continue to do so, and that is Microsofts commitment to Europe." Check out eWEEK.coms for Microsoft and Windows news, views and analysis.

Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


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