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MS vs. EC: Final Q&A and final pleadings

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The Judges were arrayed before the shrinking audience like Michelangelo’s Last Supper, complete with white napkins tucked incongruously under their chins.

But Judge John D Cooke had saved some fireworks for the last session, just when it seemed to be all but over. After warming up by checking details of who got what statement of objections, he described the commission offer of a proposal to Microsoft as akin to having a gun put to your head and given 30 seconds to hand over your wallet.

Judge Cooke moved onto the Trustee - the first time such an appointment has been made in such a case, something which clearly left him in need of reassurance.

He said the commission was effectively imposing a permanent quango on Microsoft and asked if the commission was attempting to reclaim its costs in imposing such a big fine. For the commission, Mr Whelan denied this. He was asked how he could justify imposing the costs of the Trustee on Microsoft and replied that Microsoft had the chance to short-list candidates for the post and the nature of the settlement meant that Microsoft had to be “intimately involved”.

Judge Cooke said: “That’s all very well….But the thing that is worrying about the introduction of this elaborate device is that you are effectively outsourcing the costs of policing your own decision.”

In one of the more dramatic moments of the afternoon Judge Cooke asked: “There are two distinct histories and two findings of abuse. But there is one single fine. How are we to exercise our judicial duty if we find in favour of one abuse and against the other?”

Commission lawyer Fernando Castillo de la Torre mentioned precedents like Tetrapak and Michelin before accepting the commission had not considered such a thing. He added weakly that maybe the fine could be split 50/50.

After a break, we reconvened at 5.15pm to hear final pleadings. Microsoft's barrister, Jean-François Bellis, summed up their view that the commission had failed to show Windows and Media Player were separate products and had provided no evidence of indirect foreclosure - keeping rivals out of a market. Ian Forrester, another Microsoft lawyer, was next to his feet saying it felt like the last steps of a marathon or the closing ceremony of the Olympic Games.

He said: “Microsoft cases are technical and passionate and the company raises unique levels of concern, described by some as more of Sovereign state than a market competitor."

He said the decision was unlawful and imposed penalties in perpetuity. He hoped the court would ensure that competition law and good sense should stay in step.

Per Hellstrom, for the commission, said the court had seen there was no integration between Media Player and Windows - it had just been stuck on the same CD. He said there was clear evidence of market foreclosure shown by market data and Microsoft’s own submissions. He said the fact that Microsoft had achieved dominance in other areas without tying products - such as Word - showed the commission was interested in the process of dominance, not the result.

He said the commission was not asking Microsoft to be nice to its competitors, but simply that it compete on merit and not by leveraging its desktop monopoly, however tempting that may be.

Hellstrom said: “The commission does not wish to regulate the software industry but we want to stop Microsoft doing so.”

He called on the court to uphold the decision and ask Microsoft to pay all costs.

Speaking to reporters outside the court, Microsoft general counsel Brad Smith said: “It’s been a long but constructive week. The court’s questions were very thorough and I think everyone in the room has a better understanding of what’s at stake…. It’s not just Microsoft’s ability to improve products but other companies too…. We have an important relationship with the European Community and thousands of employees throughout the European Union just as we have more to our relationship with the EC than just competition issues.”

Smith said no one could predict the outcome of the case and he certainly wouldn’t try to. He would not be drawn on whether this week’s case had influenced his thinking on ongoing discussions with the commission about Microsoft next operating system - Vista. ®

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