Microsoft said last week that it had seen documents showing that there had been possible “inappropriate contacts” between the Trustee and competitors of the software giant.
These called into question the independence of the Trustee and whether there had been a violation of principles of due process, Microsoft alleged. It also accused the Commission of withholding documents and colluding with its competitors.
In response, the Commission today published a decision defining the role of the Trustee in the Microsoft case. This is the formal document setting the parameters for the Trustee’s work in monitoring Microsoft’s compliance with a ruling, from March 2004, that Microsoft broke European competition law.
In particular, the decision provides that: “the Trustee should not only be reactive, but should play a proactive role in the monitoring of Microsoft’s compliance”. It also makes it clear that the Trustee, under the supervision of the Commission, has to monitor Microsoft’s compliance on his own initiative.
In order to fulfil that proactive role and to form his own, impartial view on complex technical questions, the Trustee must be in a position to gather views on compliance issues through contacts not only with Microsoft engineers, but also with potential beneficiaries of the remedy.
Accordingly, says the Commission, the Trustee’s contacts with such potential beneficiaries are part of his obligations under the Trustee Decision and not in any way a form of inappropriate collusion.
The Commission then highlights some of the rights and obligations of Microsoft towards the Trustee and of the Trustee towards Microsoft and third parties, as set out in the Decision. These provide that:
The Commission has also published the curriculum vitae of the Monitoring Trustee, Professor Neil Barrett, as well as the curricula vitae of his advisors. Professor Barrett was appointed from a panel suggested by Microsoft.
