Legal and Economic Analysis of a Transatlantic Antitrust Case
New Horizons in Competition Law and Economics series
Edited by Luca Rubini
Chapter 5: The Microsoft Case: You Reap what you Sow?
Jens Fejø INTRODUCTION 1. When Bill Gates, President of Microsoft, declared to members of Microsoft’s sales force in February 1997: ‘What we are trying to do is use our server control to do new protocols and lock out Sun and Oracle specifically . . . Now, I don’t know if we’ll get to that or not, but that’s what we are trying to do’, he was entering a dangerous area of business. This statement was held against Microsoft by the Commission in its Decision,1 and by the Court of First Instance (CFI) in its later judgment,2 both finding Microsoft to have violated Article 82 of the EC Treaty. How this information was leaked is not completely clear, but it certainly deserves to be highlighted in view of the many arguments Microsoft’s advocates put forward in its defence. These arguments, however, failed to convince the CFI, which confirmed the Commission’s Decision to impose on Microsoft a fine of more than €497,000,000. This followed the CFI’s affirmation of the Commission’s finding that Microsoft abused its dominant position on two counts. First, by illegally refusing to supply to competing producers of non-Windows operating systems for certain servers the protocols necessary to grant interoperability with Windows operating systems for the same servers and client PCs. Secondly, by tying or bundling Windows Media Player (WMP) with Windows operating system. Only the part of the Decision appointing a monitoring trustee was annulled. Before we venture into a more detailed study of the case, there should...
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