EU charges Microsoft over browser choice and expresses concern about Windows 8

Out-Law News | 25 Oct 2012 | 2:54 pm | 2 min. read

Microsoft failed to adhere to commitments it made to resolve concerns that it had breached EU competition laws, the European Commission has said.

The Commission said it had issued the software giant with a 'statement of objections' which outlined its "preliminary view" that Microsoft "failed to roll out the browser choice screen with its Windows 7 Service Pack 1" when the operating system was released to market in February 2012.

The regulator also said it has concerns about the way that Microsoft may look to address the issue of providing browser choice to users of its Windows 8 operating system, which is due for release soon.

The Commission previously dropped an investigation into alleged anti-competitive behaviour by Microsoft in 2009 on the basis that the software giant agreed to offer Microsoft Windows users the browser-choice screen. The Commission had been concerned that Microsoft had abused its dominant market position by 'tying' its Internet Explorer web browser to its near-universally used Windows operating system.

In a statement the Commission confirmed that the legally binding commitments that Microsoft agreed to apply until 2014. However, it said that between February 2011 and July 2012 "millions of Windows users in the EU may not have seen the choice screen" and that Microsoft itself had admitted that the "choice screen was not displayed during that period" for Windows 7 Service Pack 1 users.

The EU's Competition Commissioner, Joaquín Almunia, said that Microsoft could be fined for failing to comply with its agreed commitments. The company has been given four weeks to respond to the statement of objections issued to it after which the Commission is expected to detail its final view on the case and any sanctions it may choose to impose.

"Let me restate a basic principle of our competition rules: if companies enter into commitments, they must do what they have committed to do or face the consequences," Almunia said. "Commitments are, in general, a good way to solve antitrust concerns swiftly. They avoid lengthy proceedings and enable the Commission to obtain concrete results for consumers, while the company is not held liable for an infringement. But this only works if the commitments are scrupulously complied with."

"Therefore, companies should be deterred from any temptation to renege on their promises or even to neglect their duties. This is why, when this happens, the Commission has the power to impose fines. Before the Commission takes any final decision, I will of course listen to what Microsoft has to say. The rights of defence will be fully respected," he added.

Microsoft has attributed the said lack of a browser choice screen to a "technical error" but said: "we take responsibility for what happened, and we are strengthening our internal procedures to help ensure something like this cannot happen again," according to a report by Reuters news agency.

Almunia also warned Microsoft that its Windows 8 operating system must also conform to the browser choice commitments the company made.

"It is important that the Browser Choice Screen mechanism operates in a way that does not disadvantage the use of rival browsers," Almunia said. "Based on our own monitoring, we have raised issues to Microsoft relating to Windows 8, which is to be released soon. If a user decides to set a rival browser as the default browser, there should not be unnecessary warning windows or confirmations by the user, and the Internet Explorer icon should also be unpinned from the Start screen. We expect Microsoft to address these issues."

"In addition, third parties have been raising various issues about other aspects of Microsoft's compliance. We have carefully looked at them during this investigation and we do not see grounds, at this point, for further intervention. However, needless to say, we will remain vigilant and we will continue to monitor all aspects of Microsoft's compliance with its commitments in the future," he added.