Case T-201/04: Action brought on 7 June 2004 by Microsoft Corporation against the Commission of the European Communities
Date: 2004-07-10
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition, dominant position, fine, information technology industry, intellectual property, operating system

C 179/18

EN

Official Journal of the European Union

10.7.2004

The applicant claims that the Court should:

— annul the decision of the appointing authority rejecting his

request;

— order the Commission to pay the costs.

Pleas in law and main arguments

This action was brought by the applicant as a result of the fact
that, on 1 April 2003, he submitted a request to the Commis-
sion in the following terms: (a) if a medical report drawn up by
Dr M.P. Simonnet on the occasion of the medical check up
which the Commission required him to undergo on 20 June
2002 exists, to have a certified copy thereof sent to him or to a
doctor designated by him and, in the latter case, that he should
be informed thereof in writing; (b) if the medical report does
not exist, to be informed of that fact in writing; (c) if there is
any reason to deny the requests at (a) and (b) above, to be
informed thereof in writing.

Following the implied rejection of the request, the applicant
brought the present action.

In support of his arguments, the applicant puts forward the
following pleas in law:

Breach of the law inasmuch as the official is entitled to have
access to all data relating to him drawn up by agents of the
defendant in the course of their duties and in their possession,
and thus including the medical report.

Breach of the applicant's right to health, in particular to his
physical and mental health and of the institution's duty to have
regard for his welfare.

European Communities on 17 May 2004 by Daniel Van der
Spree, residing at Overijse (Belgium), represented by S. Orlandi,
A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address
for service in Luxembourg.

The applicant claims that the Court should:

— Annul the decision establishing finally the applicant's career
development review covering the period from 1 July 2001
to 31 December 2002;

— Order the defendant to pay the costs.

Pleas in law and main arguments:

In support of his action, the applicant pleads, first, breach of
Articles 26 and 43 of the Staff Regulations and of the special
measures applicable to the 2001-2002 transitional appraisal
exercise. The applicant also pleads breach of the duty to state
reasons, inconsistency between the comments and the marks
awarded and manifest error of assessment. The applicant relies,
further, on infringement of the rights of the defence in that the
decision was based on an internal audit report of which the
applicant was not given notice and on alleged appraisal criteria
of which, the applicant submits, he was not informed.

Breach of the obligation to provide reasons for decisions, as
provided for in Article 25 of the Staff Regulations.

Action brought on 7 June 2004 by Microsoft Corporation
against the Commission of the European Communities

Breach of the duty to have regard to the welfare of officials,
inasmuch as the defendant had not the slightest regard for the
interest of the applicant to have access to the medical report,
or at least for such a report to be transmitted to a doctor of his
choice, in particular in light of the fact that it is impossible to
discern what interest of the service the defendant sought to
protect, quod non, by its rejection of the request and of the
complaint.

(Case T-201/04)

(2004/C 179/36)

(Language of the case: English)

Action brought on 17 May 2004 by Daniel Van der Spree
against Commission of the European Communities

(Case T-182/04)

(2004/C 179/35)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 7 June 2004 by Microsoft Corpora-
tion, Washington (USA), represented by I. S. Forrester, QC, and
J.-F. Bellis, lawyer.

The applicant claims that the Court should:

— annul the Commission Decision of 24 March 2004, or, in
substantially reduce the fine

the alternative, annul or
imposed;

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

— order the Commission to bear the costs.

10.7.2004

EN

Official Journal of the European Union

C 179/19

Pleas in law and main arguments:

The applicant contests the decision of the Commission which
found two abuses of a dominant position by the applicant and
imposed a fine of EUR 497,196,304 on the applicant. In the
decision, the Commission found that the applicant has refused
to supply ‘Interoperability Information’ and allow its use for the
purpose of developing and distributing work group server
operating system products. Secondly, the Commission found
that the applicant made the availability of the ‘Windows Client
PC Operating System’ conditional on the simultaneous acquisi-
tion of Windows Media Player.

Firstly, the applicant claims in support of its application that
the Commission erred in finding that the applicant infringed
Article 82 EC by refusing to supply communications protocols
to competitors and to allow the use of that proprietary tech-
nology in competing work group server operating systems.

According to the applicant, the conditions required by the
European Courts before a dominant undertaking is obliged to
license its intellectual property rights are not met in the present
case. According to the applicant, the technology which it is
ordered to license is not indispensable to achieve interoper-
ability with Microsoft PC operating systems, the alleged refusal
to supply the technology did not prevent the emergence of
new products on a secondary market and, finally, did not have
the effect of excluding all competition on a secondary market.

Furthermore, the applicant claims that the contested decision
wrongly denied that the applicant could rely on its intellectual
property rights as an objective justification for its alleged
refusal to supply the technology and instead advanced a new
and legally defective balancing test invoking public interest in
disclosure.

The applicant also submits that no licence for the purpose of
developing software in the EEA was ever requested and that the
applicant was under no duty to regard Sun's request as giving
rise to any special responsibility under Article 82 EC.

Additionally, the applicant claims that the Commission failed
to take into account the obligations imposed on the European
Communities by the World Trade Organization's Agreement
on Trade Related Aspects of Intellectual Property (TRIPS) when
applying Article 82 to the facts of this case.

Secondly, the applicant invokes that the Commission erred in
infringed Article 82 EC by
determining that
making the availability of its PC operating systems conditional
on the simultaneous acquisition of media functionality referred
to as Windows Media Player.

the applicant

According to the applicant, the contested decision is based on
a speculative foreclosure theory according to which the wide-
spread distribution of media functionality in Windows may, at
some undetermined point in the future, lead to a situation in
which content providers and software developers will encode
almost exclusively in Windows Media formats. The applicant
submits that this theory is inconsistent with the Commission
Decision regarding the AOL/Time Warner concentration (1) as
well as with the evidence on file showing that content provi-
ders continue to encode in multiple formats.

The applicant also submits that the contested decision ignores
the benefits flowing from the applicant's business model, which
entails the integration of new functionality into Windows in
response to technological advances and changes in customer
demand.

(d)

Also, according to the applicant, the contested decision fails to
meet the conditions required to establish a violation of Article
82 EC, and in particular point
thereof. The applicant
submits that Windows and its media functionality are not two
separate products. The applicant claims furthermore that the
contested decision fails to demonstrate that the alleged tying
and tied products are not connected naturally or by commercial
usage.
In addition, the applicant submits that the contested
decision fails to take into account the obligation imposed on
the European Communities by TRIPS when applying Article 82
EC to the facts of the case and that the remedy imposed is
disproportionate.

Thirdly, the applicant submits that the requirement that the
applicant appoints and remunerate a trustee to monitor its
compliance with the decision, and receive and investigate
complaints, is unlawful as being ultra vires. The applicant states
that the powers delegated to the trustee are investigatory and
enforcement powers normally belonging to the Commission
which cannot be delegated.

the applicant

Finally,
there is no basis for
submits that
imposing any fine on the applicant in light of the legal novelty
of the finding of abuse. The applicant also claims that the
amount of the fine is plainly excessive.

(1) 2001/718/EC: Commission Decision of 11 October 2000 declaring
a concentration to be compatible with the common market and the
EEA Agreement (Case No COMP/M.1845 - AOL/Time Warner) (OJ
2001 L 268, p. 28).