A first analysis of the Microsoft judgment

The ruling of the European Court of First Instance on September 17 has been hailed as a quasicomplete victory for the European Commission in its battle with Microsoft. According to Pierre Larouche, who contributed an opinion article to Het Financieele Dagblad on September 20, it remains to be seen whether it will still resonate in the years to come. Indeed, while the quality of this judgment is to be commended, the Court sometimes seemed submerged in the technicalities of the case. The Court remained very close to the facts, perhaps in an attempt to reduce its exposure to criticism from the European Court of Justice upon appeal, which is limited to points of law. For instance, as regards the disclosure of interoperability information (first issue), observers were expecting the Court to set out clear conditions under which competition law can trump intellectual property rights. The Court preferred instead to recast the reasoning of the Commission decision to conclude that in any event, the Commission was correct even under the narrow set of conditions that recent court cases suggested. As regards the tying of Media Player to Windows (second issue), the Court literally constructed the legal reasoning for the test used in the Commission's decision, thereby filling the gap. The test itself is hardly controversial, however. For the remainder, the Court stuck to the specific facts of the case and confirmed the findings of the Commission. This judgment is therefore unlikely to bring legal disputes to rest, and it is certain to elicit criticism for its conservatism. Future Commission decisions in high-tech sectors will probably continue to be challenged before the Court.