Microsoft Corp. v Commission of the European Communities.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2007:289
• Court: General Court (European Union)
• Date: 17 September 2007
• Docket Number: T-201/04
• Procedure Type: Recurso contra una sanción - infundado
• Celex Number: 62004TJ0201

Case T-201/04

Microsoft Corp.

v

Commission of the European Communities

(Competition – Abuse of dominant position – Client PC operating systems – Work group server operating systems – Streaming media players – Decision finding infringements of Article 82 EC – Refusal of the dominant undertaking to supply and authorise the use of interoperability information – Supply by the dominant undertaking of its client PC operating system conditional on the simultaneous acquisition of its media player – Remedies – Appointment of an independent monitoring trustee – Fine – Determination of the amount – Proportionality)

Summary of the Judgment

1. Competition – Administrative procedure – Commission decision finding an infringement – Decision requiring a complex economic or technical assessment

(Arts 81 EC and 82 EC)

2. Procedure – Application initiating proceedings – Reply – Formal requirements

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

3. Competition – Dominant position – Abuse – Definition – Obligations on the dominant undertaking

(Art. 82 EC)

4. Competition – Dominant position – Abuse – Definition – Obligations on the dominant undertaking

(Art. 82 EC)

5. Competition – Dominant position – Abuse – Refusal to grant a licence for the use of a product covered by intellectual property rights

(Art. 82 EC)

6. Competition – Dominant position – Abuse – Refusal to grant a licence for the use of a product covered by intellectual property rights

(Art. 82 EC)

7. Competition – Dominant position – Abuse – Refusal to grant a licence for the use of a product covered by intellectual property rights

(Art. 82 EC)

8. Competition – Dominant position – Relevant market – Definition – Criteria

(Art. 82 EC; Commission Notice 97/C 372/03)

9. Competition – Dominant position – Abuse – Leveraging

(Art. 82 EC)

10. Competition – Dominant position – Abuse – Refusal to grant a licence for the use of a product covered by intellectual property rights

(Art. 82 EC)

11. Competition – Dominant position – Abuse – Refusal to grant a licence for the use of a product covered by intellectual property rights

(Art. 82 EC)

12. Competition – Dominant position – Abuse – Refusal to grant a licence for the use of a product covered by intellectual property rights

(Art. 82 EC)

13. International agreements – Community agreements – Primacy only over secondary legislation – Consequences for interpretation of Community law – Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

14. Competition – Dominant position – Abuse – Refusal to grant a licence for the use of a product covered by intellectual property rights

(Art. 82 EC)

15. Competition – Dominant position – Abuse – Tying

(Art. 82 EC)

16. Competition – Dominant position – Abuse – Tying

(Art. 82 EC)

17. Competition – Dominant position – Abuse – Tying

(Art. 82 EC)

18. Competition – Dominant position – Abuse – Tying

(Art. 82 EC)

19. Competition – Dominant position – Abuse – Definition – Obligations on the dominant undertaking – Competition on the basis of merit

(Art. 82 EC)

20. Actions for annulment – Pleas in law – Not possible to rely on WTO agreements to challenge the lawfulness of a Community act – Exceptions

(Art. 230 EC)

21. Competition – Administrative procedure – Commission decision finding an infringement – Remedies

(Art. 82 EC; Council Regulation No 17, Arts 3, 14 and 16)

22. Competition – Fines – Amount – Determination – Criteria

(Art. 82 EC)

1. Although as a general rule the Community Courts undertake a comprehensive review of the question as to whether or not the conditions for the application of the competition rules are met, their review of complex economic appraisals made by the Commission is necessarily limited to checking whether the relevant rules on procedure and on stating reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers.

Likewise, in so far as a Commission decision is the result of complex technical appraisals, those appraisals are in principle subject to only limited review by the Court, which means that the Community Courts cannot substitute their own assessment of matters of fact for the Commission’s.

However, while the Community Courts recognise that the Commission has a margin of appreciation in economic or technical matters, that does not mean that they must decline to review the Commission’s interpretation of economic or technical data. The Community Courts must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it.

(see paras 87-89, 379, 482, 564)

2. Under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, each application is required to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. According to consistent case-law it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application.

Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function.

The Court may take into account only those documents annexed to the application which support or supplement matters of fact or of law expressly set out in the body of the procedural documents by the applicant or defendant.

That interpretation of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance also applies to the conditions for admissibility of a reply, which according to Article 47(1) of the Rules of Procedure is intended to supplement the application.

(see paras 94-95, 99, 483)

3. Article 82 EC deals with the conduct of one or more economic operators involving the abuse of a position of economic strength which enables the operator concerned to hinder the maintenance of effective competition on the relevant market by allowing it to behave to an appreciable extent independently of its competitors, its customers and, ultimately, consumers.

Furthermore, whilst the finding of a dominant position does not in itself imply any criticism of the undertaking concerned, that undertaking has a special responsibility, irrespective of the causes of that position, not to allow its conduct to impair genuine undistorted competition on the common market.

(see para. 229)

4. In proceedings brought on the basis of Article 82 EC, the Commission may define the concept of ‘interoperability’ as the capacity for two software products to exchange information and to use that information mutually in order to allow each of those software products to function in all the ways envisaged, without being bound by the definition given by Directive 91/250 on the legal protection of computer programs, from which it does not depart.

In that context, the Commission may determine the ‘degree of interoperability’ of software products by reference to what, in its view, is necessary, in the light of Article 82 EC, in order to enable developers of work group server operating systems competing with the dominant developer to remain viably on the market. Should it be established that the existing degree of interoperability does not enable those developers to remain viably on the market, it follows that the maintenance of effective competition on that market is being hindered.

In requiring, by way of remedy, that an undertaking in a dominant position disclose the interoperability information, the Commission refers to a detailed technical description of certain rules of interconnection and interaction that can be used within the work group networks to deliver work group services. That description does not extend to the way in which the undertaking implements those rules, in particular, to the internal structure or to the source code of its products.

The degree of interoperability thus required by the Commission enables competing operating systems to interoperate with the dominant undertaking’s domain architecture on an equal footing in order to be able to compete viably with the latter’s operating systems. It does not entail making competitors’ products work in exactly the same way as its own and does not enable its competitors to clone or reproduce its products or certain features of those products.

(see paras 192, 206, 225, 227-228, 230, 234, 236-238, 241, 259, 374-375)

5. In a decision penalising the refusal by a dominant undertaking to provide competing undertakings with interoperability information of software products, the Commission may refrain from making a finding on the issue whether the dominant undertaking’s communication protocols or the specifications of those protocols are covered by intellectual property rights and assume that the undertaking is able to rely on such rights. Thus the Commission may proceed on the premiss that the refusal to supply interoperability information might not be a mere refusal to supply a product or a service indispensable to the exercise of a...