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Monday, 25 May 2009 13:37

Microsoft questions EU unfair treatment in browser hearing

Microsoft has lashed out at the European Commission over its treatment in a new antitrust case and for once the Redmond software company may have a point. The EC has brought a case against Microsoft over its long time inclusion of Internet Explorer as part of Windows.

Microsoft has been bundling IE with Windows since 1995 and was forced to make it easy for users to choose other browsers by the US government back in 2002 but this appears to be not good enough for the EC.

However, the issue for Microsoft is not the case itself but the fact that it does not believe that the EC is giving it the opportunity for a fair hearing.

The problem is that under EU law, all defendants in an antitrust suit have the right for a preliminary hearing so that it could put forward its side of the story and the EC supposedly extended Microsoft that right.

The problem for Microsoft is that the EC scheduled Microsoft's preliminary hearing for June 3-5, the exact time when the most important worldwide intergovernmental competition law meeting, the International Competition Network (ICN) meeting, will be held in Zurich, Switzerland.

What that means, according to Microsoft, is that it would not get the chance to present its case before the key EC decision makers who will all be in Zurich.

Microsoft asked for an alternative time but the EC refused so Microsoft, presumably not wishing to present its case to second tier EC officials, has pulled out.

This of course has enraged Microsoft which is crying foul.


In his blog Microsoft vice president and deputy general counsel, Dave Heiner, said:

"It appears that many of the most influential Commission and national competition officials with the greatest interest in our case will be in Zurich and so unable to attend our hearing in Brussels.

"We raised concerns about this scheduling conflict with the Commission the very same day we were notified of the proposed hearing date.

"We asked the Commission to consider alternative dates and expressed our serious concern that holding a hearing during the same days as the ICN would make it much more difficult for the Commission’s and Member States’ key decision makers to attend.

"We pointed out that there’s no legal or other reason that the hearing needs to be held the first week of June.

"We believe that holding the hearing at a time when key officials are out of the country would deny Microsoft our effective right to be heard and hence deny our “rights of defense” under European law."

According to Heiner, the reason given to Microsoft for not rescheduling the hearing was that a suitable room could not be found at any other date.

"The Commission has declined to reschedule the hearing despite our offer to find and outfit a suitable room ourselves at another time," Heiner said in his blog.

"Therefore, we reluctantly notified the Commission that we will not proceed with a hearing on June 3-5. While Microsoft maintains its request for a hearing at a different date, that request has been denied and the Commission hearing officer has deemed Microsoft to have withdrawn its request for a hearing."

Regardless of the merits of this particular antitrust case against Microsoft - and there appears to be considerable doubt given the increasingly strong market position of Mozilla Firefox both globally and especially in Europe - the actions of the EC appear to be a bit bloody minded.

In any case, it's a stretch to argue that Microsoft's bundling of IE with Windows disadvantages the competition when IE market share is dropping almost daily at the hands of competitors such as Firefox, Safari and, when Google gets it right, Chrome.

This story was written and published using Google Docs on Firefox 3.0.10 and Joomla CMS.

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Stan Beer


Stan Beer co-founded iTWire in 2005. With 30 plus years of experience working in IT and Australian technology media, Beer has published articles in most of the IT publications that have mattered, including the AFR, The Australian, SMH, The Age, as well as a multitude of trade publications.



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