Microsoft has declined the European Commission's offer to hold a hearing on antitrust matters concerning its browser bundling because of unfortunate scheduling that will leave senior decision makers absent from the proceedings.
Microsoft has declined the European Commission's offer to hold a
hearing on antitrust matters concerning its browser bundling because of
unfortunate scheduling that will leave senior decision makers absent
from the proceedings.
In a May 21 blog post,
Microsoft Vice President and Deputy General Counsel Dave Heiner
spells out how the schedule that the European Commission has given is
just an inopportune time because of a conflict that will draw key
commission officials away. Microsoft has been trying to schedule time
to present oral arguments to defend itself in the new case about
including its Internet Explorer browser with Windows.
Said Heiner in his post entitled "Why hold a hearing in the EU if key decision makers are unable to attend?":
"The dates the Commission selected for our hearing, June 3-5,
coincide with the most important worldwide intergovernmental
competition law meeting, the International Competition Network (ICN)
meeting, which will take place this year in Zurich, Switzerland. The
ICN meeting will be especially well attended this year because it will
be the first international meeting attended by representatives of the
Obama administration.
"As a result, it 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."
Heiner makes a good case and notes that the EU would not budge on
trying to reschedule the hearing. "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," he said. "Thus, the Commission
has declined to reschedule the hearing despite our offer to find and
outfit a suitable room ourselves at another time."
However, Heiner essentially says Microsoft respectfully acknowledges
the EU's offer to provide some officials to hear their case, the
company is declining so as not to wind up simply spinning its wheels.
Added Heiner:
"The Commission has been helpful in encouraging some officials and
staff who will remain in Brussels to attend our hearing. While we
appreciate that, we have confirmed that many senior officials and
national competition authority representatives will be unable to attend
some or all of the hearing due to the ICN meeting. While we would like
an opportunity to present our arguments in an oral hearing, we do not
think it makes sense to proceed if so many of the most important EC
officials and national competition authorities cannot attend."
It appears both sides are being a bit inflexible and somewhat
disingenuous. You have to believe the EU could easily reschedule the
hearing date. And Microsoft knows full well that despite who is or is
not around to hear their arguments, it is clearly important that they
get it into the record and that they follow procedure to the letter.
All throughout its landmark legal battle with the U.S. Department of
Justice and several states, Microsoft basically downplayed the
courtroom hijinks and swagger of a
gun-slinging trial attorney the
DOJ brought in to try its case. Instead, Microsoft meticulously set
about building its case for appeal. A strategy that paid off. Based on
early going, in this case, an appeal appears likely. It worked before.
As Heiner, who was around back in the days of the DOJ case, said,
the U.S. case "was resolved in 2002 with a consent decree and court
rulings designed to promote competitive opportunities for browser
vendors. Today Microsoft's integration of the browser into Windows is
regulated by these rulings, and computer users can choose Internet
Explorer, Mozilla Firefox, Apple Safari, Google Chrome, Opera or other
browsers that run on Windows."
And that is why Heiner also wrote:
"We believe we have a strong defense to this [EU] claim, especially
given the remedies put in place by the U.S. courts and the widespread
usage of competing browsers. It is too early to know how the case will
end, but whatever happens Microsoft is absolutely committed to offering
Windows 7 in Europe in a manner that is fully compliant with European
law."
It is indeed too early to know.
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