EN Official Journal of the European Union C 36/5

Final report of the Hearing Officer (1)

Case COMP/39.530 — Microsoft (Tying)

2010/C 36/05

The draft Decision presented to the Commission under Article 9 of Regulation (EC) No 1/2003 (2) concerns the allegedly illegal tying by Microsoft Corporation (‘Microsoft’) of its web browser Internet Explorer to its dominant client personal computer (‘PC’) operating system Windows (‘Windows’).

At the origin of the case is a complaint which the Commission received at the end of 2007. The Commission opened proceedings and adopted a Statement of Objections (‘SO’) setting out its competition concerns. The SO was notified to Microsoft on 15 January 2009. It constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003.

Shortly after the notification of the SO, access to file was granted to Microsoft by letter of 26 January 2009. Further access to information, initially provisionally classified as confidential, was later provided on several occasions. Since Microsoft had to devote additional time to obtain and review justifications of confidentiality claims, engage in multiple exchanges of correspondence with the Commission and taking into account the need for Microsoft to review and, where appropriate, take the additional information into account in its response to the SO, I granted a limited further extension of the deadline of one week.

After proceedings were opened, four companies (Google Inc., McAfee Inc., Mozilla, Symantec Corporation) and eight associations applied and were admitted as interested third parties (Association for Competitive Technology, Computing Technology Industry Association, European Committee for Interoperable Systems, Free Software Foundation Europe e.V., International Association of Microsoft Certified Partners, Software & Information Industry Association, Pan-European ICT & eBusiness Network for SMEs, UFC Que Choisir). One association was not admitted, since it could not show that the questions raised in this case were sufficiently closely connected to the general aims pursued by the association (3).

In its reply to the SO, Microsoft requested an Oral Hearing which was subsequently arranged for 3, 4 and 5 June 2009. However, it later declined to be heard on these dates and applied on 15 May 2009 to postpone the Oral Hearing, allegedly in order to allow senior Commission officials to be present and also provide Microsoft with more time to review and respond to any written observations the complainant and third parties might submit.

In view of the assurances given to Microsoft regarding the presence of senior Commission officials at the Oral Hearing, as well as the timely disclosure of third party comments, I rejected Microsoft's request for a postponement on 18 May 2009. Microsoft was invited in the same letter to reconsider its position and to confirm its request for an Oral Hearing. It replied on 19 May 2009 that it was unable to accept the proposed dates. I therefore considered the request for an Oral Hearing to be withdrawn.

Additional facts gathered by the Commission after the adoption of the SO were presented to Microsoft in a Letter of Facts sent on 24 July 2009. On the same day, new access to the file was granted.

In October 2009, Microsoft submitted commitments to the Commission, while continuing to disagree with its preliminary findings as set out in the SO.

The key commitments were as follows:

— Microsoft would make available a mechanism in Windows within the EEA that enables PC manufacturers and users to turn Internet Explorer off and on,

— PC manufacturers would be free to pre-install any web browser(s) of their choice on PCs they ship and set this as the default web browser,

— Microsoft would distribute a choice screen software update to users of Windows PCs within the EEA by means of Windows Update. The choice screen would give users an opportunity to choose whether and which competing web browser(s) to install.

The complete commitments were published in the Official Journal of the European Union on 9 October 2009 pursuant to Article 27(4) of Regulation (EC) No 1/2003 (4) and interested third parties invited to give their observations on these commitments within one month following publication.

After having been informed of the observations, Microsoft amended its commitments.

The Commission has now come to the conclusion that, in light of the amended commitments, there are no longer grounds for action on its part and that, without prejudice to Article 9(2), the proceedings should be brought to an end.

Microsoft declared to the Commission on 30 November 2009 that it has received sufficient access to the information on the Commission file that it considered necessary to propose commitments in order to meet the concerns expressed by the Commission.

In light of the above, I consider that the right to be heard has been respected in this case.

Brussels, 11 December 2009. Michael ALBERS

(1) Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21).

(2) Hereinafter, all Articles and chapters referred to are those of Regulation (EC) No 1/2003.

(3) On the requirement for an association to show that it or its members have a sufficient interest in a case before it may be admitted as an intervener, see the recent Order of the President of the Court of Justice of 5 February 2009 in Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd.

(4) OJ C 242, 9.10.2009, p. 20.