Why hold a hearing in the EU if key decision makers are unable to attend?


By Dave Heiner
Vice President and Deputy General Counsel

For as long as I’ve been at Microsoft (since 1994), there has always been keen interest in the antitrust issues raised by the success of Windows.

Interest peaked after we included a Web browser in Windows 95. That design choice led to the U.S. government case against Microsoft, which was resolved in 2002 with a consent decree and court rulings designed to promote competitive opportunities for browser vendors. Today Microsoft’s integration of the browser into Windows is regulated by these rulings, and computer users can choose Internet Explorer, Mozilla Firefox, Apple Safari, Google Chrome, Opera or other browsers that run on Windows.

A few months ago many of us at Microsoft had a “back to the future” moment when the European Commission brought a new case against Microsoft—concerning the inclusion of a Web browser in Windows.

Earlier this year, the Commission sent Microsoft its preliminary assessment that the inclusion of Internet Explorer in Windows since the mid-1990s violates European competition law.  We believe we have a strong defense to this claim, especially given the remedies put in place by the U.S. courts and the widespread usage of competing browsers. It is too early to know how the case will end, but whatever happens Microsoft is absolutely committed to offering Windows 7 in Europe in a manner that is fully compliant with European law.

We also submitted a response to the Commission at the end of April explaining why we believe that including Web browsing software in modern operating systems is lawful. We asked for an opportunity to present our arguments at a hearing, which is a right afforded to defendants under European Commission procedures. Unfortunately, it now appears that no hearing will be held. 

At a competition law hearing in Europe, the Commission staff, the defendant, competitors, and other interested parties offer their views. There is no judge or other fact-finder, and no real rules of evidence, but the hearing does provide an opportunity for senior officials at the Commission and at the national competition authorities of the European Member States to listen to and assess the arguments of the parties. 

The dates the Commission selected for our hearing, June 3-5, coincide with the most important worldwide intergovernmental competition law meeting, the International Competition Network (ICN) meeting, which will take place this year in Zurich, Switzerland. The ICN meeting will be especially well attended this year because it will be the first international meeting attended by representatives of the Obama administration. 

As a result, 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. 

Unfortunately, the Commission has informed us that June 3-5 are the only dates that a suitable room is available in Brussels for a hearing. Thus, the Commission has declined to reschedule the hearing despite our offer to find and outfit a suitable room ourselves at another time.

The Commission has been helpful in encouraging some officials and staff who will remain in Brussels to attend our hearing. While we appreciate that, we have confirmed that many senior officials and national competition authority representatives will be unable to attend some or all of the hearing due to the ICN meeting. While we would like an opportunity to present our arguments in an oral hearing, we do not think it makes sense to proceed if so many of the most important EC officials and national competition authorities cannot attend. 

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.

Comments (21)

  1. Anonymous says:

    It is too early to know how the case will end, but whatever happens Microsoft is absolutely committed to offering Windows 7 in Europe in a manner that is fully compliant with European law.

  2. Anonymous says:

    I just finished reading Twain’s biography on Joan of Arc. I was amazed how Europe’s greatest patriot was so cruelly used by the European Court System! And now I read this. Five Hundred years later, and Europe still doesn’t know how to conduct a fair trial!  

  3. Anonymous says:

    The antitrust issues were not raised by the success of Windows they were raised by Microsoft's business practices in establishing and maintaining the success of Windows. 15 years on that still doesn't seem to have sunk in with evryone.

  4. Anonymous says:

    Why is it that not even Microsoft officials can get their facts straight when reporting on this case? The case is not primarily about bundling IE with Windows, it is about the practice of making it a mandatory integral PART of Windows, explicitly forbidding OEM vendors to ship systems with any other browser pre-installed, and about the well-founded suspicion that Microsoft used its dominance in the OS market to subvert and fragment various Web standards (HTML, ECMAScript, Java) and create huge problems for competitors by making Internet Explorer incompatible with everything else and thus maintain its market share by anti-competitive practices.

  5. Anonymous says:

    You are misrepresenting the situation. Seniors never attend these things, so you are just looking for an excuse to stall things.

  6. Anonymous says:

    I find this kind of misinformation offensive. A private party under investigation offering to host a "private" meeting with law rulers can't but look suspicious to any outlooker. You can't blame hence judges, officials et al. for refusing such a "kind" offer. Nor an administration that forbids it. Plus, claiming that you can only be heard by the most prominent policy makers sounds tantamount to saying you are above common law and can only be judged by your aristocrathic elite. That can only make MS look bad in the eyes of the common man. I do not think these kind of statements do any good to MS, to the contrary they make the company look as a prepotent bully which is the least MS should want in the current situation. I really pity that such a great company has to endure these kind of statements from its own representatives.

  7. Anonymous says:

    @zenn, are you insane? The US has the exact same antitrust laws as the EU, and is not afraid to use them! Remember the antitrust case against Microsoft in the US? Apparently not, since you are obviously an ignorant, racist bigot who is immune to simple fa

  8. Anonymous says:

    Oh, and BTW, if the meeting is for MS to state its position after legal accusations, one would expect that it is the designated officers dealing with the case who should hear MS allegations. This statement makes it look more like MS only wanted a chance to make a big show off to decision makers, not to the court officials. It is deplorable that you make MS show that contempt for courts and make it look as if MS is only interested in bypassing the law process short-circuiting to decision makers. Sick, it is certainly sick the damage you do to your own company. It is no surprise that MS is gaining such a bad name with declarations like this one.

  9. Anonymous says:

    The European Commission is right.  The complaint about your illegal practices has been pending for 18 months already.  Those Commission officials and other competition authorities who are really interested in the browser case would have been in Brussels for the hearing.  I think this was just an attempt to delay the hearing and delay adoption of measures meant to stop Microsoft from illegally tying IE to the Windows operating system.

  10. Anonymous says:

    Do I use IExplorer??? NO!!! Did MSIE downgraded web development??? yes (just my opinion). Should any company have right to choose what will be published in their OS??? YES!!! (again just my opinion). p.s. my guess is that 98% of installations of  alternative browsers is downloaded with MSIE

  11. Anonymous says:

    Too late now, Microsoft will get the answer by special currier instead of first hand. What's a couple of bucks among friends, right? I think the NY Times pretty much spelled it out. Everyone that would be attending would be there, who is Microsoft to dictate who will be present in their courts. Hey get it right when in Rome do as the Romans do. You want to play on their turf it is their laws. Nice to see EU can't be bought like US politicians.

  12. Anonymous says:

    Thanks all for your comments.  I thought it might be helpful to address two points raised in the comments that appear to reflect a factual misunderstanding.  First, it is not true that Microsoft prohibits computer manufacturers from installing non-Microsoft browsers.  Under their contracts with Microsoft, computer manufacturers are free to install any software they like on their PCs.  In fact, for browsers and certain other categories of software this is guaranteed by the court rulings in the U.S. government case against Microsoft.  Computer manufacturers can set any browser to be the default browser and even configure Windows so that IE does not appear to be present.  The fact that computer manufacturers can install any browser, and that users can install any browser, is part of the reason why Microsoft believes that including IE in Windows is lawful.    I also wanted to clarify that Microsoft was not seeking anything out of the ordinary with respect to the hearing.  The fact that these hearings are conducted behind closed doors, for example, is standard.  Given the importance of this case, we simply wanted to be sure that the hearing would be conducted on dates when the relevant decision makers could attend.    

  13. Anonymous says:

    Microsoft is not required to get a hearing. It is an opportunity for the software company. The event in Switzerland is in no way relevant to the case. The argument reveals either utter incompetence of the persons involved in EU public policy or a lost case with a desperate attempt to get a delay. This is not "Bobby Fisher in Iceland", if your company does not want a hearing they don't get it. If your company does not attend its own hearing, only the competitors will be heard. "As a result, 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." From a professional lobbying perspective that sounds absolutely clueless to me. What does the Microsoft expect? If the Microsoft hearing was important no one would attend the lousy conference. In what way are national competition officials relevant to a decision of the Commission? The Commission scheduled a date for the event for you. It is not upon you to change it.  "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." Have you any clue how the competition thing in Brussels works? Those arguments only apply during the FIFA World Cup.

  14. Anonymous says:

    From what I understand the commission was taking this hearing so seriously they were putting forward Neelie Kroes the European Commissioner for Competition herself to attend this meeting. If that is the case I am surprised that you didn't mention it in your blog post.

  15. Anonymous says:

    Hi Alan! Exactly, worst case gone worse. Microsoft does a Lemming and the question is: why? http://www.jimmyr.com/…/Bunny_Suicide_Comic_Pics_226_2007.php

  16. Anonymous says:

    @Dave Heiner, this is truly disgusting. You aren't even addressing the gist of the issue, which is that you lied. These hearings are only attended by staff level officials anyway, none of the higher ups you worried about not being there. With the exceptio

  17. Anonymous says:

    Call what it is a tax.  OEMs can install any browser. Why does the EU not sue the them because they don't pre-install another browser.  Why does the EU not sue Google for paying to have Chrome pre-installed by OEMs at the exclusion of other third party browsers.  This has nothing to do with competition.  It is a tax by the EU on a non-EU company.     IE is not perfect, but it is competitive against the other browsers. If the EU wanted to protect Internet users they would force the browsers to work together against cybercriminals. But they are doing the opposite by forcing Opera and Safari (and other insecure browsers) to be preinstalled on a PC requireing users to make a decision on what browser will protect them, when they are not qualified to decide.  

  18. Anonymous says:

    You were offered a trial time. You could make it, but the Obama administration couldn't make it. What's your point? You need a presidential "we're innocent" card to validate your point?

  19. Anonymous says:

    Why not include a basic browser, which can link European users to a CHOICE of Web browsers?     that would make the User's choice of Web browsers alot easier.  

  20. Anonymous says:

    I was amazed how Europe’s greatest patriot was so cruelly used by the European Court System! And now I read this. Five Hundred years later, and Europe still doesn’t know how to conduct a fair trial!

  21. Anonymous says:

    With the exception of the Competition Commissioner, which is about as senior as you get. But I guess you got cold feet when you realized that she would be there? "Given the importance of this case, we simply wanted to be sure that the hearing would be conducted on dates when the relevant decision makers could attend."