Judgments nº T-201/04 of Court of First Instance of the European Communities, September 17, 2007

• Resolution Date: September 17, 2007
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-201/04

In Case T-201/04,

Microsoft Corp., established in Redmond, Washington (United States), represented by J.-F. Bellis, lawyer, and I. Forrester QC,

applicant,

supported by

The Computing Technology Industry Association, Inc., established in Oakbrook Terrace, Illinois (United States), represented by G. van Gerven and T.†Franchoo, lawyers, and B.†Kilpatrick, Solicitor,

DMDsecure.com BV, established in Amsterdam (Netherlands),

MPS Broadband AB, established in Stockholm (Sweden),

Pace Micro Technology plc, established in Shipley, West Yorkshire (United Kingdom),

Quantel Ltd, established in Newbury, Berkshire (United Kingdom),

Tandberg Television Ltd, established in Southampton, Hampshire (United Kingdom),

represented by J.†Bourgeois, lawyer,

Association for Competitive Technology, Inc., established in Washington, DC (United States), represented by L.†Ruessmann and P.†Hecker, lawyers, and K.†Bacon, Barrister,

TeamSystem SpA, established in Pesaro (Italy),

Mamut ASA, established in Oslo (Norway),

represented by G. Berrisch, lawyer,

Exor AB, established in Uppsala (Sweden), represented by S.†MartÌnez Lage, H.†Brokelmann and R.†Allendesalazar Corcho, lawyers,

interveners,

v

Commission of the European Communities, represented initially by R.†Wainwright, F.†Castillo de la Torre, P.†Hellstrˆm and A.†Whelan, acting as Agents, and subsequently by F.†Castillo de la Torre, P.†Hellstrˆm and A.†Whelan,

defendant,

supported by

Software & Information Industry Association, established in Washington, DC, represented by J.†Flynn QC, C.†Simpson and T.†Vinje, Solicitors, and D.†Paemen, N.†Dodoo and M.†Dolmans, lawyers,

Free Software Foundation Europe eV, established in Hamburg (Germany), represented by C.†Piana, lawyer,

Audiobanner.com, established in Los Angeles, California (United States), represented by L.†Alvizar Ceballos, lawyer,

European Committee for Interoperable Systems (ECIS), established in Brussels (Belgium), represented by D.†Paemen, N.†Dodoo and M.†Dolmans, lawyers, and J.†Flynn QC,

interveners,

APPLICATION for annulment of Commission Decision 2007/53/EC of 24 March 2004 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement against Microsoft Corp. (Case COMP/C-3/37.792 - Microsoft) (OJ 2007 L†32, p.†23) or, in the alternative, annulment or reduction of the fine imposed on the applicant in that decision,

†

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Grand Chamber),

composed of: B.†Vesterdorf, President, M.†Jaeger, J.†Pirrung, R.†GarcÌa-Valdecasas, V.†Tiili, J.†Azizi, J.D.†Cooke, A.W.H.†Meij, N.J.†Forwood, E.†Martins Ribeiro, I.†Wiszniewska-Bia-ecka, V.†Vadapalas and I.†Labucka, Judges,

Registrar: E.†Coulon,

having regard to the written procedure and further to the hearing on 24, 25, 26, 27 and 28 April 2006,

gives the following

Judgment

†Background to the dispute

1††††††††Microsoft Corp., a company established in Redmond, Washington (United States), designs, develops and markets a wide variety of software products for different kinds of computing devices. Those software products include, in particular, operating systems for client personal computers (-client PCs-), operating systems for work group servers and streaming media players. Microsoft also provides technical assistance for its various products.

2††††††††On 15 September 1998, Mr Green, a Vice-President of Sun Microsystems, Inc. (-Sun-), a company established in Palo Alto, California (United States) which supplies, in particular, servers and server operating systems, wrote to Mr Maritz, a Vice-President of Microsoft, as follows:

-We are writing to you to request that Microsoft provide [Sun] with the complete information required to allow Sun to provide native support for COM objects on Solaris.

We also request that Microsoft provide [Sun] with the complete information required to allow [Sun] to provide native support for the complete set of Active Directory technologies on Solaris.

We believe it is in the industry-s best interest that applications written to execute on Solaris be able to seamlessly communicate via COM and/or Active Directory with the Windows operating systems and/or with Windows-based software.

We believe that Microsoft should include a reference implementation and such other information as is necessary to insure, without reverse engineering, that COM objects and the complete set of Active Directory technologies will run in full compatible fashion on Solaris. We think it necessary that such information be provided for the full range of COM objects as well as for the full set of Active Directory technologies currently on the market. We also think it necessary that such information be provided in a timely manner and on a continuing basis for COM objects and Active Directory technologies which are to be released to the market in the future.-

3††††††††That letter will be referred to below as -the letter of 15 September 1998-.

4††††††††By letter of 6 October 1998, Mr Maritz replied to the letter of 15 September 1998. In his letter, he said:

-Thank you for your interest in working with Windows. We have some mutual customers using our products, and I think it is great you are interested in opening up your system to interoperate with Windows. Microsoft has always believed in helping software developers, including [its] competitors, build the best possible products and interoperability for [its] platform.

You may not realise that the information you requested on how to interoperate with COM and the Active Directory technologies is already published and available to you and every other software developer in the world via the Microsoft Developer Network (MSDN) Universal product. MSDN contains comprehensive information about the services and interfaces of the Windows platform and is a great source of information for developers interested in writing to or interoperating with Windows. In fact, Sun currently has 32 active licenses for the MSDN Universal subscription. Furthermore, as your company has done in the past, I assume you will be sending a significant number of people to attend our Professional Developers Conference in Denver October 11 - October 15, 1998. This will be another venue to get the technical information you are seeking in order to work with our systems technologies. Some of the 23 Sun employees that attend[ed] last year[...]s conference should be able to provide you with their comments on the quality and depth of information discussed at these Professional Developers Conferences.

You will be pleased to know that there is already a reference implementation of COM on Solaris. This implementation of COM on Solaris is a fully supported binary available from Microsoft. Source code for COM can be licensed from other sources including Software AG. -

Regarding the Active Directory, we have no plans to -port- [it] to Solaris. However, to satisfy our mutual customers there are many methods with varying levels of functionality in order to interoperate with the Active Directory. For example, you can use the standard LDAP to access the Windows NT Server Active Directory from Solaris.

If after attending [the Professional Developers Conference] and reading through all the public MSDN content you should require some additional support, our Developer Relations Group has account managers who strive to help developers who need additional support for Microsoft-s platforms. I have asked Marshall Goldberg, the Lead Program Manager, to make himself available should you need it --

5††††††††Mr Maritz-s letter of 6 October 1998 will be referred to below as -the letter of 6 October 1998-.

6††††††††On 10 December 1998, Sun lodged a complaint with the Commission pursuant to Article 3 of Council Regulation No†17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p.†87).

7††††††††Sun-s complaint related to Microsoft-s refusal to give it the information and technology necessary to allow its work group server operating systems to interoperate with the Windows client PC operating system.

8††††††††On 2 August 2000, the Commission sent Microsoft a first statement of objections (-the first statement of objections-), which related in effect to questions concerning the interoperability of Windows client PC operating systems and other suppliers- server operating systems (client/server interoperability).

9††††††††Microsoft responded to the first statement of objections on 17 November 2000.

10††††††In the meantime, in February 2000, the Commission, acting on its own initiative, launched an investigation relating, particularly, to Microsoft-s Windows 2000 generation of client PC and work group server operating systems and to the integration by Microsoft of its Windows Media Player in its Windows client PC operating system. The client PC operating system in the Windows 2000 range was intended for professional use and was called -Windows 2000 Professional-, whereas the server operating systems in that range were presented under the three following versions: Windows 2000 Server, Windows 2000 Advanced Server and Windows 2000 Datacenter Server.

11††††††That investigation concluded on 29 August 2001, when the Commission sent Microsoft a second statement of objections (-the second statement of objections-), in which it reiterated its previous objections concerning client/server interoperability. The Commission also addressed certain questions relating to interoperability between work group servers (server/server interoperability). In addition, the Commission raised a number of questions concerning the integration of Windows Media Player in the Windows client PC operating system.

12††††††Microsoft responded to the second statement of objections on 16 November 2001.

13††††††In December 2001, Microsoft sent the Commission a report containing the results and the analysis of a survey carried out by Mercer Management Consulting (-Mercer-).

14††††††Between April and June...