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The Two New Investigations of Microsoft by the EU Commission - Updated 4Xs
Monday, January 14 2008 @ 02:09 PM EST

I thought it would be useful to put all the important information about the two new investigations of Microsoft by the EU Commission here. First, Opera's complaint to the EU Commission was deemed worth following through on. That is significant, indeed, but the ECIS complaint about Office is even bigger to FOSS, particularly with the Microsoft MSOOXML vote coming in February. One of the issues the EU Commission says it will be investigating is whether Office Open XML as implemented in Office is "sufficiently interoperable with competitors' products".

Heh heh. Maybe not.

You might find the proposed agreement [PDF] between Microsoft Greece and the Greek government that NO OOXML just publicized of interest. I would analyze it a bit differently, but it certainly shows a kind of bartering for business that no competitor could afford to match. (Note something similar in India.) Put that together with this study which the press release indicates shows an environment ripe for corruption of votes, and it raises in my mind questions about competition.

But on to the latest. First, here's the EU Commission press release and here's ECIS's statement [PDF]. It will be on this page shortly, I believe. Opera will no doubt have a statement too, and when it is released will be here.

Here's the meat of the EU Commission statement:

The European Commission has decided to initiate two formal antitrust investigations against Microsoft Corp concerning two separate categories of alleged infringements of EC Treaty rules on abuse of a dominant market position (Article 82). The first case where proceedings have been opened is in the field of interoperability in relation to a complaint by the European Committee for Interoperable Systems (ECIS). The second area where proceedings have been opened is in the field of tying of separate software products following inter alia a complaint by Opera. As regards interoperability, in its Microsoft judgment of 17 September 2007, the Court of First Instance confirmed the principles that must be respected by dominant companies as regards interoperability disclosures. In the complaint by ECIS, Microsoft is alleged to have illegally refused to disclose interoperability information across a broad range of products, including information related to its Office suite, a number of its server products, and also in relation to the so called .NET Framework. The Commission's examination will therefore focus on all these areas, including the question whether Microsoft's new file format Office Open XML, as implemented in Office, is sufficiently interoperable with competitors' products.

As for the tying of separate software products, in its Microsoft judgment of 17 September 2007, the Court of First Instance confirmed the principles that must be respected by dominant companies. In a complaint by Opera, a competing browser vendor, Microsoft is alleged to have engaged in illegal tying of its Internet Explorer product to its dominant Windows operating system. The complaint alleges that there is ongoing competitive harm from Microsoft's practices, in particular in view of new proprietary technologies that Microsoft has allegedly introduced in its browser that would reduce compatibility with open internet standards, and therefore hinder competition. In addition, allegations of tying of other separate software products by Microsoft, including desktop search and Windows Live have been brought to the Commission's attention. The Commission's investigation will therefore focus on allegations that a range of products have been unlawfully tied to sales of Microsoft's dominant operating system.

This initiation of proceedings does not imply that the Commission has proof of an infringement. It only signifies that the Commission will further investigate the case as a matter of priority.

ECIS's statement says this:

ECIS takes note of the European Commission announcement today opening two new investigations against Microsoft for abuse of its dominant position.

"It is regrettable that despite the judgment of September 2007, Microsoft continues to use its desktop monopolies to restrict competition. That's what the ECIS and Opera complaints are about," said Thomas Vinje, ECIS spokesman.

ECIS therefore welcomes the Commission's announcement as a necessary step towards ensuring Microsoft's compliance with competition rules in the areas mentioned in the ECIS complaint of February 2006 and the Opera complaint of December 2007. These include the refusal to disclose interoperability information for a range of products relating to the Office suite, email and collaboration software, and the .NET framework as well as Microsoft's illegal tying of its Internet Explorer product to its Windows monopoly.

I'm pretty sure this means they're addressing the SharePoint strategy that Dana Blankenhorn explained last summer and that Matt Asay has been writing warning messages about repeatedly. Regarding the Opera complaint, as a refresher, here's an interview with Thomas Vinje regarding ECIS support for Opera. FSFE also announced its support. And a group interview with Opera's CEO, CTO and general counsel.

Update: Andy Updegrove has a reaction, looking particularly at the standards issue and MSOOXML:

The investigations will also look into whether Microsoft has failed to adequately open OOXML, or to take adequate measures to ensure that Office is "sufficiently interoperable" with competing products. This would seem to indicate that Microsoft's strategy of offering OOXML to Ecma, and then ISO/IEC JTC1, may fail to achieve its objective, whether or not OOXML is finally approved as a global standard.

Why? Perhaps because of Microsoft's heavy-handed actions during the review period that ended unsuccessfully on September 2. And perhaps also because Microsoft has refused to implement ODF, consigning the marketplace to a web of imperfect converters and translators that are likely to always result in more complex Office documents being slightly less than perfect when converted into other word processing suites.

Update 2: Here's something interesting, an interview with Jonathan Todd, spokesman for the EU Commission, who indicates it wasn't only Opera who has complained about tying:

Jonathan TODD: The investigation concerning tying of products in with the Microsoft Operating System. It is partly based on a complaint by a company called Opera, and concerns the tying in the Internet Explorer, but we have also had complaints about the tying in other softwares, and essentially we will be looking whether this tying in constitutes an abuse of Microsoft dominant position on the operating system software market and in particular we are gonna be taking in account the principles laid down in the Commission's March 2004 decision which were confirmed by the Court of First Instance last Autumn.

Update 3: We have a Microsoft statement now from BusinessWeek:

"Microsoft should be concerned because this case addresses core aspects of its business model and the preservation of its core monopolies," says Thomas Vinje, a partner at law firm Clifford Chance in Brussels, Belgium, who represents a coalition of tech companies that filed one of the two new complaints. "The case has the potential to transform the software industry and give consumers a real choice in desktop operating systems and programs."

In a statement, Microsoft said it plans to cooperate with the European Commission's investigation and provide it with the information it requests. "We are committed to ensuring that Microsoft is in full compliance with European law," the company said.

Update 4: The ECIS and Opera cases have case numbers now:

COMP/39.294, ECIS complaint
COMP/39.530, Opera complaint

When the Commission adds official announcements, it will reference those case number files on that page. Here's the ECIS info currently. And here's Opera's.

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