# C_2008138EN.01000301.xml

| 5.6.2008 | EN | Official Journal of the European Union | C 138/3 |
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5.6.2008

EN

Official Journal of the European Union

C 138/3

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Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 411th meeting on 3 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft

(2008/C 138/04)

| 1. | The Advisory Committee agrees, on the basis of the Trustee's reports and the Commission's analysis, that the entirety of the materials (1) that Microsoft has submitted up to 15 December 2005 at midnight does not correspond to complete and accurate technical documentation and that, therefore, Microsoft has not complied with the disclosure order laid down in Articles 5(a) and (c) of the 24 March 2004 Decision. |
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1.

The Advisory Committee agrees, on the basis of the Trustee's reports and the Commission's analysis, that the entirety of the materials (1) that Microsoft has submitted up to 15 December 2005 at midnight does not correspond to complete and accurate technical documentation and that, therefore, Microsoft has not complied with the disclosure order laid down in Articles 5(a) and (c) of the 24 March 2004 Decision.

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| 2. | The Advisory Committee agrees with the Commission when the latter states that it was well founded to send a Statement of Objections to Microsoft on 21 December 2005 after having examined all the documents submitted by Microsoft within the deadline laid down in the 10 November 2005 decision, i.e. by 15 December 2005. |
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2.

The Advisory Committee agrees with the Commission when the latter states that it was well founded to send a Statement of Objections to Microsoft on 21 December 2005 after having examined all the documents submitted by Microsoft within the deadline laid down in the 10 November 2005 decision, i.e. by 15 December 2005.

| 3. | The Advisory Committee agrees with the Commission (2) when the latter, on the basis of the reports from the Trustee and the Commission's experts, considers that, Microsoft, over the period 16 December 2005-20 June 2006 has not satisfied the obligation which the periodic penalty payment was intended to enforce (i.e. it has not provided the technical documentation which is conformity with what is required under the disclosure order laid down in Articles 5(a) and (c) of the 24 March 2004 Decision. |
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3.

The Advisory Committee agrees with the Commission (2) when the latter, on the basis of the reports from the Trustee and the Commission's experts, considers that, Microsoft, over the period 16 December 2005-20 June 2006 has not satisfied the obligation which the periodic penalty payment was intended to enforce (i.e. it has not provided the technical documentation which is conformity with what is required under the disclosure order laid down in Articles 5(a) and (c) of the 24 March 2004 Decision.

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| 4. | The Advisory Committee agrees that the Commission can, when applying Article 24(2) of Regulation (EC) No 1/2003, fix the definitive amount of the periodic penalty payment for a relevant period of time, before Microsoft has satisfied the obligation laid down in Articles 5(a) and (c) of the 24 March 2004 Decision. |
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4.

The Advisory Committee agrees that the Commission can, when applying Article 24(2) of Regulation (EC) No 1/2003, fix the definitive amount of the periodic penalty payment for a relevant period of time, before Microsoft has satisfied the obligation laid down in Articles 5(a) and (c) of the 24 March 2004 Decision.

| 5. | The Advisory Committee agrees with the Commission in considering the period between 16 December 2005 and 20 June 2006 as the relevant period of time. |
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5.

The Advisory Committee agrees with the Commission in considering the period between 16 December 2005 and 20 June 2006 as the relevant period of time.

| 6. | The Advisory Committee asks the Commission to take into account all the other points raised during the discussion. |
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6.

The Advisory Committee asks the Commission to take into account all the other points raised during the discussion.

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(1)  Consisting of the versions of the documentation of December 2004, August 2005 and November 2005, and the letter of 15 December 2005 with Annexes.

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(2)  The Commission summarises its position in recitals 232 and 233 of the draft decision.

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