Commission - Decision - Applicant software company found to have abused dominant position in PC operating system market
Microsoft Corporation v European Commission: General Court of the European Union (Second Chamber) (Judges Forwood (rapporteur) (president), Dehousse, Schwarcz): 27 June 2012
The proceedings arose out of a 2004 decision to the effect that the applicant company had abused a dominant position (see Microsoft Corporation v European Commission  All ER (D) 98 (Sep)) by, inter alia, refusing to supply its competitors with ‘interoperability information’ (the information) and by authorising the use of the information for the purpose of developing and distributing products competing with its own products on the work group server market (group server products) between October 1998 and 2004.
The European Commission fixed a total sum to be paid as a penalty of €899m. Article 5(a) of the 2004 decision set out requirements for the applicant to carry out remuneration. That decision required the applicant to, inter alia, make the information available to any undertaking having an interest in developing and distributing group server products. In a subsequent decision of November 2005 (the 2005 decision), which imposed a periodic penalty payment on the applicant, the commission held that the information provided by the applicant under the 2004 ruling was not complete. Following an application by the applicant, the Court annulled article 7 of the 2004 decision, which, inter alia, obliged the applicant to make proposals for a mechanism to include a monitoring trustee to assess the applicant’s information to assist it in providing the required information. In May 2008, the applicant made an application for reconsideration of, inter alia, the amount and rate of the periodic penalty payments.
The applicant submitted, inter alia: (i) it was unlawful to impose a periodic payment before the applicant’s obligations under article 5(a) of the 2004 decision was made specific; (ii) the commission erred in law by concluding that the remuneration rates relating to the ‘no patent’ agreement were unreasonable; (iii) the commission erred in relation to the criteria applied to assess the innovative character of the technologies covered by the ‘no patent’ agreement; (iv) the court had placed unlawful reliance on the monitoring trustee’s reports; (v) that there was no legal basis for the imposition of a periodic penalty payment and the amount thereof was excessive and disproportionate.
The court ruled: Having considered the various submissions of the parties, the applicant would remain liable to pay a periodic penalty payment (see , , , , , , ,  of the judgment). The amount of the payment imposed on the applicant would be fixed at €860m (see  of the judgment).