Out-Law News 2 min. read
06 Mar 2013, 4:15 pm
The regulator had required Microsoft to display a screen offering users of its Windows operating systems a choice over which website browser to use. However, it found that the company had failed to display the browser-choice screen for a period of approximately 14 months spanning between May 2011 and July last year.
The Commission said that the failing, which Microsoft previously put down to a "technical error", had meant that 15 million Windows users in the EU had not seen the browser-choice screen.
Microsoft is required to display its browser-choice screen until late next year under commitments the company agreed with the Commission in 2009. At the time the Commission had raised concerns about the dominance of Microsoft in the browser market and had taken issue with the company tying its Internet Explorer browser to its near-universally used Windows system.
In a statement the Commission said it was the first time that it had levied a fine against a company for failing to adhere to an agreement to settle competition law concerns.
"Legally binding commitments reached in antitrust decisions play a very important role in our enforcement policy because they allow for rapid solutions to competition problems," the EU's Competition Commissioner Joaquín Almunia said. "Of course, such decisions require strict compliance. A failure to comply is a very serious infringement that must be sanctioned accordingly."
The Commission said that the "gravity and duration" of Microsoft's infringement, the need to deter companies from not complying with their commitments and the fact Microsoft had cooperated with its investigation were all factors which it weighed when deciding what level of fine to impose.
Competition law specialist Alan Davis of Pinsent Masons, the law firm behind Out-Law.com, said that Microsoft had been required to appoint an independent Monitoring Trustee previously where the Commission had found it to have breached competition law. He said he was surprised that the Commission had not required Microsoft to put in place a Monitoring Trustee in respect of the browser choice commitments, especially following this recent breach.
In the previous case, Microsoft had been required to supply complete and accurate interoperability information and make that information available on reasonable terms under the terms of those decisions. It had been required to appoint, and pay for, the establishment of an independent Monitoring Trustee to assist the Commission with monitoring its compliance with those requirements. Davis noted that the Commission imposed fines of €280.5 million and €899 million in 2006 and 2007 once it became clear that Microsoft had failed to meet its obligations under the Commission's decision.
"Regulators want to make sure that the commitments they have agreed with companies are being complied with, but the cost and time involved with monitoring that compliance is onerous," Davis said. "Regulators are therefore heavily reliant on reports submitted by companies themselves to assess that compliance, but in this case it is clear that there were failings with Microsoft's self-monitoring and self-reporting processes as the browser-choice error was not identified for 14 months."
"There was therefore a good case for the Commission to require Microsoft to appoint a Monitoring Trustee in this case at the time of the original commitments decision or going forward, and I would anticipate that the Commission will consider imposing such a requirement on other companies in similar cases in the future," he added.
When the Commission opened its investigation into the case in July last year Joaquín Almunia said that it had gathered evidence suggesting that Microsoft stopped displaying the screen in early 2011 following the company's launch of its Windows 7 Service Pack 1. Microsoft had told the Commission in December 2011 though that it was still using the browser-choice screen, Almunia had said.
"We take full responsibility for the technical error that caused this problem and have apologised for it," Microsoft said in a statement, according to a report by the BBC. "We provided the Commission with a complete and candid assessment of the situation, and we have taken steps to strengthen our software development and other processes to help avoid this mistake - or anything similar - in the future."