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Microsoft awaits European Court decision

Split decision possible

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The European Court of First Instance in Luxembourg will rule on Monday whether the guilty verdict against Microsoft should be overturned.

The software giant was found guilty of anti-competitive practices in 2004. The Court ruled Microsoft was in breach of article 82 of the EC Treaty for abusing its dominant position in the PC operating system market and the market for work group operating systems.

The case hinged on its bundling of Windows Media Player with its operating system, and whether it restricted access to server APIs, making it impossible for rival server makers to create boxes which could communicate with Microsoft boxes. The Court found Microsoft guilty of abusing its dominant position in both cases.

In April last year the Court of First Instance heard Microsoft's appeal against that verdict. The panel of 13 judges and one registrar heard five days of evidence from the Directorate General for Competition and Microsoft. The Court heard evidence from several experts including Samba founder Andrew Tridgell. The Samba project aims to create Microsoft server APIs by reverse engineering.

The case is one of the largest the European Competition Commission has ever brought. If the guilty verdict is upheld Microsoft is liable for a €500m fine. Microsoft also had to offer a version of Windows without a bundled media player and had to appoint a Trustee, Professor Neil Barrett, to oversee its continued compliance with European Commission demands.

Microsoft insists it has fully complied with the original DG for Competition demands.

The case is being pitched by some observers as an acid test for the DG for Competition, which will be re-energised if its action against Microsoft is upheld. It will give the institution more confidence to pursue other technology cases. But the result may not be so clear-cut. It is quite possible that the decision will be divided – Microsoft could be found innocent of bundling its media player, but guilty on the issue of server APIs. In April the appeal Court questioned why there was one fine for what was effectively two offences.

Court President Bo Vesterdorf is retiring after presenting the verdict.

John D Cooke is the judge-rapporteur who will compile the final decision. Previous decisions have been criticised as being too inclusive. By trying to include the opinions of 13 judges from different European countries, some lawyers complain that the lengthy documents end up contradicting themselves and not really offering a solid precedent for future legal decisions.

Microsoft or the DG could appeal the verdict on a point of law. It would then be heard by the European Court of Justice.

The Reg is not taking bets on the likely outcome – a very small number of people within the DG will get early access to the verdict. But the word from lawyers in the know is that a split decision is likely, with Microsoft winning on bundling its media player but losing on the issue of interoperability information for workgroup servers.

We'll bring you the verdict first thing on Monday morning – Vesterdorf is giving the verdict at 9.30am central European summer time.®

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