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Concern About Delay By EU Commission on MS
Tuesday, June 28 2005 @ 11:19 PM EDT

The Free Software Foundation Europe is expressing concern about delays resulting from the flap over EU Commission Judge Hubert Legal's article in the French legal journal Concurrences (Competition). The article was on the EU Commission review process, in which he criticized clerks, whom he called "ayatollahs of free enterprise", saying they should avoid giving the impression of throwing their weight around.

As you will recall, the resulting uproar resulted in a proposed revamping of the panel of judges on the case, increasing them from 5 to 13, transferring it to the Grand Chamber with Bo Vesterdorf, President of the Court of First Instance, presumably at the head instead of Legal. Now some say the change could result in delays of from three months to a year. For one thing, the file is huge and whoever heads the new panel would have to get up to speed.

Other than translation work, the case is now stalled and FSF Europe president Georg Greve says any delay "works for Microsoft." Well, what doesn't? The 25 judges have to meet to decide whether to agree to Vesterdorf's proposal, and it's not clear when that will happen.

Naturally, I had to read that article and try to figure out if this was all a tempest in a bureaucratic teapot or just an excuse to topple a judge who might be leaning in a particular direction. I strongly believe in reading source documents, not just journalists' reports about them. That includes my articles too, which is why I always give you links, so you can reach your own conclusions.

So I obtained the article to see for myself what was so terrible about what Judge Legal wrote. I saw absolutely nothing that would explain such a huge reaction. All I got from the article was that he is not inclined to disturb decisions by the Commission lightly and he doesn't want to be pressured by clerks or anyone else.

It's in French, so I thought I must have missed a nuance or something, so I asked one of Groklaw's volunteer translators, Terry Cole, to take a look. I thought perhaps it might be something an American can't understand, but he concurs that it does seem to be a case of distress at Judge Legal airing internal dirty linen in public.

Of course, this is about Microsoft, and that company has created an entire nation of cynics, nay, an entire world, thanks to its behavior. We remember what happened to Judge Jackson. Now, my cynical side began whispering in my ear, saying, "Judge Legal is not inclined to disturb decisions he is reviewing. He was the head of the 5-judge panel reviewing the EU's strong ruling against Microsoft. Now he's no longer the head of the case. And for such a trifle. What is really going on over there?" However, Terry sees much less than my fevered brain and tells me his impression of the article:

To paint the broadest possible brush on this, it looks as though the senior judges -- himself included -- are used to being circumspect about making decisions which are properly the domain of the legislature, but that they expect the legislature to leave declaration of the law to them, and this was not being adhered to.

Worse, a third force was appearing in the form of clerks and ancillary personnel who came with prejudices as to the rightness of a case and expectations as to the penalties for marginal infringement, which effectively made them judges in place of the judges. That really was the main thrust of Mr. Legal's opinion.

It was almost certainly what got him into hot water. The thing is that no one familiar with the arcane goings-on in Strasbourg and Bruxelles should be surprised. . . . but his displacement doesn't mean MS is off the hook. None of this really has any bearing on Mr. Legal's bias, if any, in the Microsoft case. It is about the bias of Tribunal staff. And it's probably true to say that Mr. Legal is not in as much trouble as those staff.

It's true that he has been joined by other judges but having looked into the Reuters report, despite appearances he is not actually off the case. It's probably more the case that the other judges feel he was a very naughty boy for revealing dirty linen in public.

If I know anything about the way a typical Juge d'Instruction would feel about this, they will be very hot on preserving their authority over the instruction. Napoleon famously said that the most powerful man in France under the Napoleonic code was the judge in charge of a case, and there are good reasons why that is still so. That is not a power they will lightly surrender to politicos of any stripe, least of all unelected ones.

Another detail to put things in perspective is this article (in French), which tells us that Judge Legal has overturned a major EU decision in the past. There is a computer translation into English, with the usual comedic touch:

Hubert Legal, judge with the Court of first authority European, would direct a team of three thus, even five, judges charged to make a decision unanimous on the call of the American giant of the software, that the Commission recognized guilty March of abuse dominant position on the market of the operating systems for personal computers.

The responsibility for the files arriving in front of the Court falls by bearing with the judges of the five rooms of this one, each room cash five members.

. . . [Blink.] "Cash five members?"

J'espère que non.

: )

I enjoy computer translations so much. I'll be nostalgic when they work all the kinks out. More seriously, that article portrays Judge Legal as a strong jurist, not afraid to act on his convictions:

Denis Waelbroeck, lawyer specialist in the right of the competition to the Ashurst cabinet in Brussels, explained that Legal had an image of authority and that it was known to raise very precise questions.

"It is a very strong judge (...) and Schneider-Legrand confirmed. It was not alone within the room which decided on this case but they did not hesitate, even if it were painful of saying to three recoveries at the Commission which it had been mistaken", has it says.

I think you can catch the drift there, despite the computerese. I'd translate it more to say that Waelbroeck explained that Legal has the reputation for being authoritative, a very strong judge who has been known to ask very precise questions and doesn't hesitate to tell the Commission when he thinks it is wrong, ("C'est un juge très fort (...) et Schneider-Legrand l'a confirmé. Il n'était pas seul au sein de la chambre qui a décidé sur ce cas mais ils n'ont pas hésité, même s'il était douloureux de dire à trois reprises à la Commission qu'elle s'était trompée", a-t-il dit.)

I'd love to show you the whole article Judge Legal wrote, but Concurrences sells it, and of course it's copyrighted, so you will have to buy it for yourself (100 EU) if you want to read the whole thing. I actually found the site extremely interesting. Note this collection of links, for example. They have articles available for free too. They describe themselves like this:

Concurrences is the first legal review in the French language to be dedicated exclusively to EU antitrust laws and national antitrust laws. A group of lawyers and economists, judges, university professors and attorneys, contribute every quarter to the various columns.

Here's a snip from Legal's article, used by permission, translated by Terry, followed by the French in smaller text, so you can translate for yourself if you are fluent in that language:

"Now, this Tribunal has no effective means of proceeding to a complete recasting of Commission decisions. Given constraints on human and translation resources, and equally on expertise, it must work within self-imposed limits if it is to remain credible. Besides, overlapping powers of the executive authority and its legal oversight makes no institutional sense from any rational standpoint.

I have come to believe that there are only two coherent and convincing organizational models appropriate to this matter. The present model of the Community is one of them. It presupposes at the jurisdictional level a judicial oversight, completed as and when the evidence and documentation permits, by those charged with the review of the contested decision. The other model is one in which the executive authority establishes the facts and terms of reference then leaves the decision as an exercise of judicial authority.

[Translator's Note: The writer here appears to be distinguishing a Napoleonic forensic system derived from Civil Law from an adversarial system typical of Common Law jurisdictions].

We cannot lose sight of the merits of either. The least we can do is to not avoid redoubling efforts at revisiting the facts at intervals of several months or years, permitting a full use of the executive's powers of inquiry and analysis, freed from the pressures implied by having to worry about consequent penalties, and corresponding powers of evaluation by the judicial authority. Nothing in fact would be quite so disheartening as the show of arbitrary power which replacing such evaluation by persons familiar in depth with the situation would represent, by some new evaluation, scarcely better founded in the facts or the law, done by persons who, with honorable exceptions, know the details less well. "


Or le Tribunal n’a pas les moyens de procéder à la refonte systématique des décisions de la Commission. Ses contraintes d’effectifs, de délais, de langue, de connaissances également, lui imposent une auto-limitation s’il veut rester crédible. En outre, une duplication entre l’autorité administrative et son juge n’a pas desens du point de vue de la rationalité institutionnelle.

Je crois finalement qu’il n’y a en la matière que deux modèles d’organisation cohérents et convaincants. Le modèle actuel de la Communauté en est un. Il suppose au niveau juridictionnel un contrôle de légalité, éventuellement complété, si le dossier le permet, par l’exercice des pouvoirs de réformation de la décision attaquée. L’autre modèle est celui dans lequel l’administration instruit le dossier et où la décision est prise par une instance juridictionnelle.

Il ne faut pas en négliger les mérites. Le moindre n’est pas d’éviter un redoublement du contrôle des faits à plusieurs mois ou plusieurs années d’intervalle et de permettre une pleine utilisation des moyens d’enquête et d’analyse de l’administration, libérée de la pression qu’induit la responsabilité de sanctionner, et des pouvoirs d’appréciation du juge. Rien n’est aussi navrant en effet que la démonstration d’arbitraire que peut représenter la substitution à l’évaluation opérée par des personnes connaissant une situation de manière approfondie d’une nouvelle évaluation, pas forcément meilleure en opportunité ni en droit, faite par des personnes qui, sauf exception, connaissent le dossier moins bien.

So, the weight of the evidence so far is that it's just life. I see again the value of never assuming anything without checking carefully first and keeping an open mind. Here's a paper [PDF] on judicial review in Europe, if you are interested in digging deeper and can read French better than I can.

The only thing that still strikes me as odd about this story is that the excuse given for the recent proposed "informal agreement" between the EU Commission and Microsoft to let Microsoft exile FOSS from its communications protocols until after the case is finally decided years from now was because the Commission wished to avoid delay. And now there is delay, due to the proposed change in judges. The upshot of all the delays proposed, no matter the motive, is that FOSS is left to struggle on an unfair playing field for years, while Microsoft goes its merry way.

But to be fair, and precise, that "informal agreement" with Microsoft to keep Open Source developers out in the cold was not Bo Vesterdorf's proposal. It was European competition commissioner Neelie Kroes who made that "informal agreement" with Microsoft. Vesterbrook is the one who refused to delay the sanctions against Microsoft. Friday is the deadline for the parties to comment on the Kroes proposal. I hope everyone says they hate the idea, but it is beginning to look like FSF Europe is the only completely reliable party willing to hold the FOSS flag high.

And just in case there are any sincere naifs who think Microsoft has learned its lesson and turned over a new leaf, I present today's Exhibit A, "Microsoft blocks right clicking on MSN for Mozilla browsers." Do read the comments thread on this page as well, for a workaround.

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