Kroes bläst zum Kampf gegen Microsoft[en] 

In March 2004, DG Competition found that Microsoft was leveraging its near-monopoly in the market for PC operating systems to gain a similar position on the market for workgroup-server operating systems. It ruled that Micosoft must provide its rivals on the market for enterprise servers with information on protocols used by Microsoft, allowing competitors to make compatible products.

The Commission ruled that the information provided must be complete and accurate, and that royalties must be reasonable, meaning that the prices companies had to pay for protocol information should be determined by the degreee to which the protocols were innovative as compared with rival and open protcols. 

In October 2005, the Commission appointed Professor Neil Barrett, a computer- security specialist from Cranfield University in the UK proposed by Microsoft, as its trustee in the anti-trust case (see EurActiv, 6 October 2005). 

Following several submissions of protocol information by Microsoft, which the Commission deemed incomplete and inaccurate, it imposed, on 12 July 2006, a penalty on Microsoft. It also threatened to raise the daily fine that Microsoft has to pay from €2million to €3 million if it found that the information provided by Microsoft was insufficient. Microsoft thereafter provided extensive information, which the Commission is still examining. 

As concerns access to protocols, Microsoft made it subject to a pricing scheme  that rests on whether patented licenses are included and how innovative Microsoft deems the protocols to be. 

On 1 March 2007, the Commission's anti-trust department, DG Competition, sent a statement of objections to Microsoft, warning the company that the prices it charges for access to its workgroup-server protocols are generally too high. According to the Commission, the assumption that the protocols contained "significant innovation", a chief reason to justify higher pricing, was in most cases wrong. 

Professor Barrett, the trustee in the case, said that of the total of 160 claims in Microsoft's "No-Patent Agreement" licensing scheme, "only four, relating to relatively minor Bronze protocols, represent even a limited degree of innovation". 

As concerns the protocols contained in the agreement including patented technologies, Barrett said that the information provided was insufficient in that it referred, in many cases, only to problems specific to Microsoft's own Windows operating system, instead of providing generally usable interoperability information. 

In addition, the trustee said, technologies offering almost the same funcitonality, were also available royalty-free, in some cases even from Microsoft itself. 

Competition Commissioner Neelie Kroes said: "The Commission's current view is that there is no significant innovation in these protocols. I am therefore again obliged to take formal measures to ensure that Microsoft complies with its obligations." Kroes's spokesman, Jonathan Todd, added: "In 50 years of European anti-trust policy, this is the first time that we have been confronted with a company that has failed to comply with an anti-trust decision. We are in somewhat unknown territory. We don't want to be in a situation where ten years after an anti-trust decision, they still are not in compliance."

The trustee, Professor Neil Barrett, said, on the protocols in the 'No-patent' licensing scheme: "All of the described features were considered either to have been Microsoft implementations of prior developments by others, or to have been anticipated by prior developments and to be immediately obvious minor extensions to that prior work."

Microsoft General Counsel Brad Smith said: "We have worked very hard and at great length to construct the type of pricing schedule and rates that we hoped would satisfy the Commission. We submitted our most recent pricing proposal last August and have been asking for feedback on that proposal ever since. We are disappointed that it has taken six months to get this feedback and that it is being given in its present form, but if there is a silver lining, perhaps it is that we may now finally have some meetings and discussions to try to resolve this."

Simon Awde, chairman of the European Committee for Interoperable Systems, an Industry Alliance bringing together Microsoft competitors and opponents, said: "Three years on, it is increasingly evident that Microsoft is using four tactics to nullify the impact of the Commission's decision when the company does eventually comply. First, Microsoft refuses to provide complete and updated interoperability information - for which is was fined in June 2006. Today's statement of objection demonstrates that Microsoaft is also making it economically unviable for competitors to license the information to produce competing, interoperable products." ECIS added that, thirdly, Microsoft refuses to license the protocols under any terms or conditions to open-source competitors such as Linux and that fourthly, Microsoft imposes restrictive and prohibitive terms and conditions in the license."