Microsoft Declines EU Antitrust Hearing Due to Schedule Snafu

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.

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"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.