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EU To Take Legal Action Against Microsoft
beebware writes: "The BBC is running this story about the European Union opening an antitrust case against Microsoft. It seems legal action has already started (a warning has been issued) - place your bets now on the outcome...." You can also check out the ZDNN story. The warning comes from a complaint registered by Sun Microsystems.
OK, while IAAL, I have no significant competition law practice either on the UK or the EU law (although I know enough to say that if M$ is guilty by EU standards, they're also guilty by UK standards if the acts complained of at an EU-wide level were committed in the UK as well), so this is going to be fairly sketchy.
What's being alleged here is an offence or offences against Articles 85 and 85 of the Treaty of Rome, which binds everyone in the EU - it's a bit like the way Federal law in the US binds everyone in the individual States (and please, no pedantry from US conflict-of-laws experts, OK? This is a rough guide, not a detailed exposition).
Articles 85 and 86 provide that it's unlawful, in a manner which pretty much amounts to making it a criminal offence, to trade in such a way as to be anticompetitive or to abuse a dominant position in a market. Whether on the facts M$ have actually done either of these things is not something I can tell from any of the articles cited, though I would personally bet a reasonable sum that their ordinary way of doing business as revealed on discovery in the US DoJ prosecution will get the Commission fairly well exercised.
This is not the same as US antitrust legislation, even though it looks very similar indeed. The basic deal is that the European Commission (sort of the EU's Civil Service, only not quite - I told you this was going to be a rough guide) investigates and prosecutes offenders almost exactly the way a police force/prosecution service would for a national crime. The only remedies available are an order to terminate the infringement or, where it was committed "intentionally or negligently" a fine on turnover while the offending conduct continues - the EU can't do anything to M$ beyond that, whereas the US Courts can pretty much order Bill to commit HariKiri if they find him guilty.
There is virtually no political element to this. The Commission is not elected, and apart from the Commissioners themselves (one for each directorate-general, which is the name for the departments of the Commission, and a couple of head honchos like the President), there are no political appointees in the Commission. They're all career civil servants, accountable as to their budget to the European Court of Auditors and as to their actions in prosecution of governments and large corporations, to the European Court of Justice (not the European Court of Human Rights, which is a completely different institution, in a different building in a different city with different personnel and a different jurisdiction: it is vitally important not to confuse the two, particularly when filing an appeal.)
The amount of tax money that is going to be spent on this is, compared with the EU's budget as a whole, peanuts. (The EU's budget as a whole is peanuts compared with the national budgets of everywhere except Luxembourg and San Merino, but that's by the by).
M$ won't be able to drag it out, either. Commission prosecutions are usually fairly swift and fairly brutal. The Appeal from the Commission is to the European Court of Justice, a body that grinds exceeding small but does grind rather slow. And an appeal does not usually stay execution.
As to the fine, it's up to 10 per cent of turnover. M$ might be able to mitigate by immediately ceasing and desisting and generally playing nice from now on, but that's more or less it. While one per cent is the usual, this does mean fines of the order of £200-250 million get levied on a fairly regular basis, and appeals don't usually succeed (the Commission has a limited budget, and only acts when it is fairly sure it will win).
Basically, though, that 10 per cent is the maximum penalty, reserved for the real baby-eating satanists of the European Single Market's competition landscape. M$ might be bad, but I doubt they'll be found to be that bad.
-- AndrewD
A Maze of Twisty Little Laws, All Different.
Several have been discussed in the press recently.
First would be higher tarriffs on all M$ product, the problem being it is all produced locally inside the EU and that would make it difficult. M$ has plants in Ireland and local production in almost every country, and tarriffs are difficult to assess in such a case (which is why every american company does the same thing).
Another solution would be to alter the tax structure on any company offering a pure M$ solution, and normal taxes on any company with a mix of products. This isn't all that popular, but exclusionary licensing is not allowed in Europe and many M$ shops are 100% M$ because up until now there has been no enforcement of M$ abuses of power.
There is also talk of creating a European only M$, and not allowing any kind of investments or profit sharing between Euro-M$ and the US-M$. Effectively, the US-M$ would be banned from all markets, and would have to turn over a copy of all software and patents to the new Euro-M$. Then the Euro-M$ would be responsible to Euro courts, and the large revenue stream currently flowing to Redmond would stay within the EU. A lot of the far-right parties are quietly supporting this, and it may become an issue in elections if the court case goes against M$.
Keep an eye on the Euro news outlets for their local commentary. Some make a lot of revenue from M$ advertising, but many do not, and thus tend to print reasonably unbiased accounts of the ongoing action.
the AC
Hemos is like...sci-fi fans;he thinks technology is cool, but he hasn't bothered to understand the science it's based on
The Washington voters are actually perfectly rational here. Although consumers in general would be benefited by Microsoft being forced out of being a monopoly, there would be a cost. The cost of harming Microsoft (or even Microsoft losing its monopoly... monopoly rents are very useful...) is born largely on the people of Washington.
It is easy for us to criticize them. We'd get the benefits and not pay the costs. They'd pay the costs and not get the benefits. Do you really not understand why they wouldn't want that?
Alex
Micro~1.oft has been pulling the same games in Europe as in the US. This includes withholding Dos/Win/Nt from any PC manufacturer who doesn't exclusively sell only M$ products. This makes it impossible for any competitors such as SolarisX.86 from being offered or supported in the marketplace. That is just the start of the charges being brought against M$.
There are also ongoing investigations into the "Embrace - Extend - Extinguish" methodology in the open protocols arena. Kerberos, M$-CHAP, SMB, and some others are being investigated. It is possible the prosecutors will not shy away from the technical attacks the way the US prosecutors did. The issue is complex, but there is hope the court will take the time to understand the criminal aspects of micro~1.oft's behaviour, and that it extends into every area of their business.
The courts have also been asking companies for documented examples of FUD, vapor products which never made it to market, exclusionary licenses, and targeted advertising campaigns. There has apparently been an overwhelming response from companies fed up with M$ monopolistic behaviour.
the AC
Hemos is like...sci-fi fans;he thinks technology is cool, but he hasn't bothered to understand the science it's based on
Both Iowa and Washington state have been noted to include this in their party plank. As a FYI, Rep. Jennifer Dunn gave Washington's delegate count during last night's rolling roll call at the convention and it was she who pointedly referred to the Microsoft case.
This is another view of the world.
Microsoft is an example of why anti-trust laws need international bite to back them up, if the global community is serious about using them to bring monopolies to heel. It was fortunate that Microsoft was located in a jurisdiction where US anti-trust law could get at them directly. However, what if they were based in Canada? How about Finland? Even better, what about Japan or South Korea, countries where what the English-speaking world would view as collusion, corruption, and anti-competitive business practices are routine parts of trade?
Possibly as part of the GATT (General Agreement on Tariffs and Trade) negotiations, the issue of a global monopoly-busting body is likely going to come up some day. Is such a thing possible? Could it work, or would it just become another political football that the US, EU, and Japan would kick back and forth?
Any sufficiently advanced technology is indistinguishable from a rigged demo
--Andy Finkel (J. Klass?)