September 2, 2014

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The Microsoft Internet Explorer Saga: Microsoft Fined €561 Million for Failure to Keep Promises

On 16 December 2009, the Commission rendered a decision under Article 9 of Regulation 1/2003 that gave legally binding effect to the commitments offered by Microsoft in relation to its practices on the web browser market.  The commitments were made to address concerns that Microsoft might have tied its web browser, Internet Explorer, to the Windows PC operating system in breach of EU rules on abuse of dominance (Article 102 of the Treaty on the functioning of the European Union).  Under the commitments approved by the Commission, Microsoft promised to make available for five years a “ballot screen” that would enable users of Windows XP, Windows Vista and Windows 7 to choose the web browser(s) they preferred to install in addition to, or instead of, Internet Explorer.  The commitments also provided that computer manufacturers would be able to install competing web browsers, set these as defaults, and switch off Internet Explorer.  The Commission allowed Microsoft to act as its own trustee to monitor the commitments.

On 17 July 2012, the EU’s top antitrust regulator announced the launch of an investigation into allegations that Microsoft had failed to comply with the browser commitment made in 2009. 

The Commission’s Decision

The Commission found that Microsoft had in fact failed to make the browser ballot screen available to customers with its Windows 7 Service Pack 1 between May 2011 and July 2012. 

Taking into account the gravity and duration of the infringement, and the mitigating factor of Microsoft’s cooperation in the matter, the Commission imposed on Microsoft a fine of €561 million.  Commissioner Almunia commented

"In setting the level of the fine, the Commission took into account (…) the need to ensure that the sanction is sufficiently deterrent”.  Deterring violations of settlements is vital as Commissioner Almunia sees commitment decisions as (…) a very important tool in the EU antitrust enforcement system.  Decisions of this type (…) can be a good way to solve antitrust concerns swiftly since they avoid lengthy proceedings".

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About this Author

Philip Bentley, QC, McDermott WIll Emery law Firm, Antitrust Attorney
Partner

Philip Bentley is a partner in the international law firm of McDermott Will & Emery/Stanbrook LLP based in its Brussels office.  He is a member of the Firm’s EU regulatory practice and European Competition and Trade Groups.  His practice focuses on EU anti-dumping, trade defense and customs, EU competition (including State aid and public procurement), EU regulatory matters, notably GMOs, and EU litigation.

32 2 282 35 27

David Henry is an associate in the international law firm of McDermott Will & Emery, based in its Brussels office.  His practice focuses on European competition law including merger control, cartels and abuse of dominance, and his clients include companies in the air transport, chemicals, electronics and semi-conductor products, food retailing and digital map industries.  He also advises clients in proceedings before the European courts. 

32 2 282 35 69
Partner

Martina Maier is a partner in the international law firm of McDermott Will & Emery, based in its Brussels office. Martina is head of the firm’s European Antitrust and Competition Practice Group and her practice focuses on German and European competition law, including State aid, single firm conduct, merger control and agreements restricting competition.   She has extensive experience in representing clients in a broad range of industries before the European Commission and national competition authorities and courts.

32 2 282 35 66