EN Official Journal of the European Union C 120/15

Summary of Commission Decision

of 6 March 2013

relating to a proceeding on the imposition of a fine pursuant to Article 23(2)(c) of Council Regulation (EC) No 1/2003 for failure to comply with a commitment made binding by a Commission decision pursuant to Article 9 of Council Regulation (EC) No 1/2003

(Case COMP/39.530 — Microsoft (Tying))

(notified under document C(2013) 1210 final)

(Only English text is authentic)

2013/C 120/06

On 6 March 2013, the Commission adopted a decision relating to a proceeding on the imposition of a fine pursuant to Article 23(2)(c) of Council Regulation (EC) No 1/2003 (1) for failure to comply with a commitment made binding by a Commission decision pursuant to Article 9 of Council Regulation (EC) No 1/2003. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003, the Commission herewith publishes the name of the party and the main content of the decision, including the penalties imposed, having regard to the legitimate interest of undertaking in the protection of its business secrets.

Background of the case

(1) On 16 December 2009, the Commission adopted a decision relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement pursuant to Article 9(1) of Regulation (EC) No 1/2003, which made binding the commitments offered by Microsoft Corporation (‘Microsoft’) to meet the Commission’s concerns, as set out in a statement of objections of 14 January 2009 (‘the commitments’) (2).

(2) The Commission’s preliminary concerns related to the tying of Microsoft’s web browser, Internet Explorer (‘IE’), to its dominant client PC operating system, Windows.

(3) In order to address the Commission’s preliminary concerns, Microsoft committed in particular to offer Windows users an unbiased choice among different web browsers by means of a choice screen in Windows XP, Windows Vista, Windows 7 and in Windows client PC operating systems sold after Windows 7. Microsoft committed to display the choice screen to Windows users within the European Economic Area (‘EEA’) that have IE set as the default web browser.

Procedure

(4) On 17 June 2012, the Commission was informed of a possible failure to comply with the commitments by Microsoft. On 4 July 2012, Microsoft acknowledged a failure to display the choice screen to users of Windows 7 Service Pack 1 (‘Windows 7 SP 1’).

(5) On 16 July 2012, the Commission decided to reopen and initiate proceedings. On 24 October 2012, the Commission adopted a statement of objections. On 6 November 2012, Microsoft was granted access to the Commission’s file. On 2 December 2012, Microsoft replied to the statement of objections.

(6) On 4 March 2013, the Advisory Committee on restrictive practices and dominant positions issued a favourable opinion. On 5 March 2013, the Hearing Officer issued a final report.

Legal assessment and fines

(7) The infringement consists of Microsoft's failure to comply with Section 2 of the commitments by not displaying the choice screen to users within the EEA that have IE set as the default web browser.

(8) In light of Microsoft's arguments, the Commission concluded that Microsoft’s failure to comply lasted for 14 months from 17 May 2011 until 16 July 2012. The Commission also considered that the number of users affected by Microsoft’s failure to comply with Section 2 of the commitments is approximately 15,3 million.

Negligence

(9) A series of technical errors and omissions led to Microsoft’s failure to provide the choice screen to the affected users. Given its resources and know-how, however, Microsoft should have been able to avoid such errors and should have had better processes in place to ensure that the choice screen was correctly displayed to the affected users.

(10) The Commission concluded that Microsoft acted negligently.

Gravity

(11) The Commission underlines that regardless of the specific circumstances of the case, a failure to comply with a commitment decision is, in principle, a serious breach of Union law (3).

(12) In the case at hand, Microsoft’s failure to comply with Section 2 of the commitments goes to the core of the Commission’s competition concerns and of Microsoft’s obligations as set out in the commitments. The number of affected users, approximately 15,3 million, was significant.

(13) The Commission therefore regards the infringement committed by Microsoft as a serious one.

Duration

(14) The duration of Microsoft’s failure to comply with Section 2 of the commitments was 14 months. When setting the amount of the fine, the Commission took into account that 14 months is a significant part of the overall duration of Section 2 of the commitments (4 years and 39 weeks).

Mitigating factors

(15) The Decision concluded that the fact that Microsoft helped the Commission to more efficiently investigate the case by providing evidence of the failure to comply is a mitigating factor. Microsoft has deployed resources to conduct a thorough investigation as to the reasons for the failure to comply.

Deterrent effect

(16) In order to ensure that the fine has a deterrent effect, the Commission took into account Microsoft's size and resources. The Commission therefore took into account the fact that Microsoft’s turnover in the fiscal year July 2011 to June 2012, Microsoft’s last full business year, was USD 73,723 million (EUR 55,088 million).

The fine

(17) In the light of all the factors set out above, the Commission set the level of the fine at EUR 561 000 000, corresponding to 1,02 % of Microsoft’s turnover in the fiscal year July 2011 to June 2012.

(1) OJ L 1, 4.1.2003, p. 1.

(2) OJ C 36, 13.2.2010, p. 7.

(3) See by analogy Case T-141/08 E.ON Energie AG v Commission [2010] ECR II-5761, paragraph 279.