European Commission fines Microsoft for non-compliance with its commitment decision

On 6 March 2013 the European Commission imposed a Euro 561 million fine on Microsoft for not complying with its previous commitments to address competition concerns related to the tying of Microsoft’s web browser, Internet Explorer, to its dominant client PC operating system Windows. The so called “Article 9 decision” mandated Microsoft to offer users a browser choice screen enabling them to easily choose their preferred web browser.

This is the first ever decision of its kind, and it will be particularly interesting to understand the way in which the Commission calculated the amount of the fine. The Commission’s press release states that in the calculation of the fine the Commission took into account the gravity and duration of the infringement, the need to ensure a deterrent effect of the fine and, as a mitigating circumstance, the fact that Microsoft has cooperated with the Commission and provided information which helped the Commission to investigate the matter efficiently.

Competition Commissioner Almunia gave additional insight in that respect. First, Almunia stated that such a breach is very serious, irrespective of whether it was intentional or not. In passing, he stressed that in fast-moving markets such as the IT sector, Article 9 decisions can be particularly helpful, making it easier for the Commission to obtain concrete results for consumers.

Almunia also noted that although Microsoft did make the choice screen available in March 2010, the choice screen was not rolled out as required following the launch of Windows 7 Service Pack 1 in May 2011, so that “during [the period of] more than a year, until July 2012, around 15.3 million users did not see the choice screen as they should have”, which arguably implies that the Commission regarded such a time span as material, wherein a significant number of users were potentially affected by Microsoft’s breach. Finally, Almunia clarified that once the breach was discovered, Microsoft cooperated with the Commission and provided information which helped the Commission to investigate the matter efficiently. This was taken into account as a mitigating circumstance. [Gabriele Accardo]

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