Date set for Microsoft’s day in EU court

Microsoft’s request for suspension of the European Commission’s anti-competition decision and other interim measures will be heard in the European Court of First Instance on Sept. 30. The date was set at an informal meeting on Tuesday by the president of the CFI, the second-highest court of the European Union. The meeting was attended by lawyers representing Microsoft, the Commission and other interested parties, according to a spokesman for the CFI.

Microsoft’s request for suspension of the European Commission’s anti-competition decision and other interim measures will be heard in the European Court of First Instance on Sept. 30. The date was set at an informal meeting on Tuesday by the president of the CFI, the second-highest court of the European Union. The meeting was attended by lawyers representing Microsoft, the Commission and other interested parties, according to a spokesman for the CFI.

The Danish president of the CFI, Bo Vesterdorf, had called for the informal meeting at the Luxembourg court to discuss the practicalities and timetable of Microsoft’s application for suspension. Further details regarding the two-day hearing will be communicated nearer the September hearing, the CFI spokesman said.

Microsoft is appealing remedies that the Commission imposed on March 24, when it ruled that Microsoft had violated competition law by using its dominance in the PC operating system market to gain an advantage in the markets for media players and workgroup server operating systems.

“We very much look forward to making our case before the Court,” Microsoft’s spokesman in Brussels, Tom Brookes, said on Tuesday following the hearing. “We have got a very strong case and will argue that the remedies proposed by the Commission will be harmful to consumers, the industry and Microsoft.”

Microsoft has hired Jean-Francois Bellis of the law firm Van Bael & Bellis LLP and Ian Forrester from White & Case LLP, two well-known antitrust lawyers in Brussels, Brookes said.

According to Thomas Vinje, a partner in the Brussels office of law firm Clifford Chance LLP, little news was expected to come from the meeting, which was purely procedural.

“(The meeting), I believe, address(ed) questions such as when the oral hearing will occur, how long it will take, who will be allowed to speak and for how long, who will be allowed to submit written pleadings and when. I expected no bombshells,” said Vinje, who represented Microsoft rivals during the Commission’s investigation, including the Washington, D.C., lobbying group, the Computer and Communications Industry Association (CCIA).

Vesterdorf met with lawyers representing the Commission and those in support of the Commission, as well as Microsoft and those in support of the Redmond, Wash., software maker. Those in support of either side had to apply to the Court for representation; they were subsequently grouped together and each side was represented by a single lawyer, according to the CFI spokesman.

The group supporting the Commission consisted of CCIA, RealNetworks, Novell and the Software & Information Industry Association (SIIA).

In Microsoft’s corner were the Computing Technology Association (CompTIA); the Association for Competitive Technology (ACT); TeamSystem SpA and Mamut ASA (as part of a joint application); DMDsecure.com BV; MPS Broadband AB; Pace MicroTechnology PLC; Quantel Ltd. and Tandberg Television Ltd. (also under a joint application), and Exor Electronic R & D.

According to the CFI, intervention was refused to Digimpro, Coda Group Holdings and IDE Nätverkskonsulterna AB. Additionally, the Free Software Foundation had requested to intervene but because its request was received by the Court later than the others, a decision has yet to be taken. The group was invited to the meeting on Tuesday, in case they are allowed to intervene later, the CFI spokesman said.

Vesterdorf is considering a request by Microsoft that it be granted an interlocutory order to suspend the Commission’s competition remedies against it until the CFI as a whole decides whether to affirm or annul the decision, a process that is expected to take between three and five years. Vesterdorf has issued just eight interlocutory orders in 50 cases over the past three years.

Along with a fine, the Commission gave Microsoft 90 days to supply a version of the Windows operating system without its media player and 120 days to reveal enough Windows code to allow rivals to build competing server software that can work properly with Windows.

The remedy deadlines were June 28 and July 27 respectively, but on June 27 the Commission temporarily suspended those deadlines until the Microsoft application for interim measures is ruled on by Vesterdorf, who has the discretion to suspend one or both of the remedies, or to fully deny the request.

Earlier this month, Microsoft paid the Commission’s fine of €497 million ($604 million, as of Tuesday), which is currently being held in an escrow account pending the results of Microsoft’s appeal.