Microsoft cancels hearing in EU antitrust case

Microsoft has decided to cancel a hearing it requested in the current EU antitrust case. According to Microsoft's Dave Heiner, this is because the dates of the hearing coincided with the "International Competition Network" competition law meeting, meaning that "many of the most influential Commission and national competition officials with the greatest interest in our case will be in Zurich and so unable to attend [their] hearing in Brussels".

Microsoft is concerned that this will deny them their right to be heard, and their "rights of defense", despite their admission that the hearing has no legal weight as such. …

ECIS attorney Thomas Vinje has a different take on Microsoft's decision to cancel the hearing. He says that Microsoft simply "got cold feet", and that Microsoft representatives are making statements they know are false.

Vinje points out that such hearings are usually only conducted by staff level officials rather than senior officials. Commission spokesman Jonathan Todd confirms Vinje's comments, and adds that the hearing would be attended by Neelie Kroes, European Commissioner for Competition.

Mrs. Kroes certainly doesn't seem to pull any punches when it comes to dealing with anti-competitive behaviour. Could this be another stalling tactic by Microsoft? Are they hoping to delay the case until she steps down later this year?

While I'm on the subject of misleading statements, I feel I must comment on this statement by Dave Heiner:

We also submitted a response to the Commission at the end of April explaining why we believe that including Web browsing software in modern operating systems is lawful.

Mr. Heiner must surely know that Mozilla, Google, Opera, the EC or other involved parties have never claimed that it is illegal to inclue browsers with an operating system. Being a Deputy General Counsel, he should have a better grasp of the law than this! The problem is the way Microsoft used bundling in combination with its dominance in the operating system market to undermine competition in the browser market.

Is Mr. Heisner making a statement he knows is false, or did he simply not do his job as Deputy General Counsel, which would involve educating himself about the actual facts of the case?

Incompetence or malice? With Microsoft, it's often difficult to tell.

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17 thoughts on “Microsoft cancels hearing in EU antitrust case

  1. We also submitted a response to the Commission at the end of April explaining why we believe that including Web browsing software in modern operating systems is lawful.

    A classic straw man argument.

  2. Anonymous writes:

    "… have never claimed that it is illegal to inclue browsers with an operating system. … The problem is the way Microsoft used bundling in combination with its dominance in the operating system market to undermine competition in the browser market."I don't understand. In what way could Microsoft include the browser in their operating system without having the same sentiments from so many people. Since I don't share Opera's point of view on this whole issue, I have a hard time seeing what your perceived difference between the two quoted statements is for Microsoft's case. Can you please clarify so I can understand your position better?Are you implying that it is ok to bundle a browser with an operating system until your operating system reaches a certain marketshare?

  3. Bundling isn't a problem in itself. It becomes a problem when a dominant player uses bundling to prevent competition. Microsoft didn't just bundle IE, they also ignored open Web standards, tied the browser closely to the operating system, bullied OEMs into not offering other browsers, and so on.When someone becomes dominant in a market, they are no longer playing by the same rules as everyone else, by the very nature of their position. "Monopolists" (I don't like using that word since people always start debating the definition rather than the issue at hand) have to play by different rules because what they do has a huge impact on the market.

  4. Originally posted by haavard:

    Are they hoping to delay the case until she steps down later this year?

    I would bet on this one… Neelie Kroes was responsible for most of the fines against MS. Would Microsoft lobby her party to put someone there they could trust after the election ?

  5. Asa Dotzler writes:

    To anyone watching this unfold it should be clear that this is just a public relations game. Microsoft has succeeded in making the EU look out of step and out of time. Microsoft is dominating this from a PR perspective. The EU and Opera are becoming increasingly marginalized in the press. Microsoft's written response is necessarily going to be way more persuasive than any oral arguments they could make. They submitted hundreds of pages of presumably well crafted responses — something they have the legal resources to do really, really well and now they're denying the smaller players with fewer resources the opportunity to make compelling oral arguments.There can be little doubt that Microsoft is winning this game right now. They've manufactured a view of the EU and Opera as out dated, out moded, inflexible, and frankly, incompetent. I sincerely hope that something turns things in the favor of competition and open standards, but I don't have a lot of confidence.

  6. fritz writes:@Indyan: "Well EU has refused to postone the hearing."Why wouldn't they? Why should the EU play Microsoft's games? If you bothered to read the actual articles, you would have noticed that Microsoft's "worries" are baseless because these hearings are only attended by officials at the staff level. Microsoft is lying again.But in addition to those, Microsoft even got the competition commissioner herself. How's that for senior?

  7. fritz writes:@Asa Dotzler: "a view of the EU and Opera as out dated, out moded, inflexible, and frankly, incompetent"And Mozilla obviously, seeing as Mozilla is in on the whole thing.But I guess it's more important to bash Opera than to be honest about the fact that Mozilla has thrown its weight behind the antitrust case as well.Interesting to note that when things seem to turn in Microsoft's favor again (from Mozilla's perspective; I disagree that they are), Mozilla suddenly regrets joining the complaint, and now apparently wants to distance itself from it?How pathetic.

  8. Computer stores in South Africa 'warn' customers that only Windows contains built in virus protection and anti-virus updates. They also 'inform' their customers that there is no software 'for sale' for other operating systems.I'm not sure if this is even relevant but I don't understand Why I should be forced to buy Vista when I only want a computer. :left:.

  9. Asa Dotzler writes:

    Fritz, you're either confused or you're letting your partisanship get the better of you."And Mozilla [viewed as out dated, out moded, inflexible, and frankly, incompetent] obviously, seeing as Mozilla is in on the whole thing."Mozilla joined this effort because any outcome was likely to have a serious impact on Mozilla and Firefox. Not being a part of this, where Mozilla could read the actual contents of the case and offer its knowledge to the EC, would have simply been irresponsible."But I guess it's more important to bash Opera than to be honest about the fact that Mozilla has thrown its weight behind the antitrust case as well."Mozilla involved itself in this as an "Interested Third Party" because this case if of interest to Mozilla. Are you accusing me of suggesting that Mozilla didn't involve itself in this? Care to cite an example of me claiming that Mozilla isn't involved?"Interesting to note that when things seem to turn in Microsoft's favor again (from Mozilla's perspective; I disagree that they are), Mozilla suddenly regrets joining the complaint, and now apparently wants to distance itself from it?"You seem to be missing two important points. One, Mozilla doesn't regret becoming an Interested Third Party. That was a good decision that's still a good decision today. Without requesting and receiving that status, Mozilla would have no access to the actual documentation that will decide this whole issue (the complaint, microsoft's written response, etc.) Mozilla would also not have the opportunity to put forth its view on outcomes. Mozilla did the right thing seeking and gaining this status and this access. Not doing so would have been terribly irresponsible given how this will necessarily impact Mozilla and Firefox.Two, I'm not, with the above comment, trying to distance anyone from anything. I'm just pointing out that Microsoft is winning the PR battle around this. To pretend this doesn't matter is naive. Do you not understand what this oral arguments stage of the process was all about? Obviously not. If you did realize that Microsoft's army of lawyers are really really good at documentation and that neither Opera nor Mozilla could possibly build a detailed written rebuttal to Microsoft's many hundreds of pages written response to the EC, then you'd understand that Microsoft has taken away Opera's (and Mozilla's and every other Interested Third Party's) ability to present a compelling oral argument that potentially could do what none of them have the resources to do on paper — educate the EC about the actual state of the market and what kinds of remedies would do more good than harm.Not only did Microsoft deny all of those "friends" of Opera and the EC the opportunity to make a compelling oral argument, but they did it in a way that makes the EC look unfair, inflexible, and out of touch. That's a big win for Microsoft and denying that doesn't help anyone. You obviously don't know enough about what's going on here to comment intelligently. That's not an insult, just an observation. When you've learned something about how this entire process works, and you've got a better understanding of the relationship between the different actors, I'm interested in hearing more from you.

  10. fritz writes:Nice insults, Asa. I clearly hit a nerve in regards to Mozilla's dishonesty and cowardice.Why is Opera looking "out dated, out moded, inflexible, and frankly, incompetent" but not Mozilla? Mozilla is as much tied to this case as Opera is (Opera isn't running it, they just reported the crime and that's it).Clearly, Mozilla desperately wants to distance itself and blame everyone else now that they perceive that they will be taking heat. Just like they only joined once Opera had taken most of the heat.Mozilla seems to be an egotistical, opportunist coward organization which is unwilling to stand up for what's right, only getting involved when someone else has done the hard work, and departing as soon as things don't seem to go exactly as Mozilla wants them to. Truly pathetic.

  11. fritz writes:"Not only did Microsoft deny all of those "friends" of Opera and the EC the opportunity to make a compelling oral argument"This is stupid, Asa. Just stupid. You are dishonestly giving the false impression that Opera and the EC are the active parties here, while Mozilla is just looking from the sidelines.Opera is no more involved in the actual case than Mozilla, and you know it.And yet you pathetically and dishonestly give the impression that Opera has any authority in the antitrust trial and process.

  12. Originally posted by anonymous:

    Why wouldn't they? Why should the EU play Microsoft's games? If you bothered to read the actual articles, you would have noticed that Microsoft's "worries" are baseless because these hearings are only attended by officials at the staff level. Microsoft is lying again.But in addition to those, Microsoft even got the competition commissioner herself. How's that for senior?

    Hey, you are getting me all wrong. I never suggested that EU was in the wrong. I just wanted to posted an updated that EU has done the right thing and refused to allow MS to cancell the hearing.

  13. Asa Dotzler writes:Fritz, you're seeing things. I recommend you go back and read what I wrote and not what you wish I'd written. I haven't given Opera any authority it doesn't have. I've only explained what I think is Mozilla's position and what I think Microsoft is doing to win the PR battle around Opera's complaint and the EU's action.I realize that you're thin-skinned and prone to playing the victim. I might be too if my preferred browser struggled for more than a decade to gain less than 1% global market share. Heck, I'd be looking to blame ever one and everything to the point of missing the actual content of the conversation most of the time.My entire point is that Microsoft is winning this thing. They're making the EC, the EU, and Opera look bad. Read the press. You don't see anyone saying that Mozilla is coming out of this looking bad but the same can't be said for the European governing body and Opera. Regardless of your take on Opera, though, the simple truth is that Microsoft is playing this better than the EC and refusing to acknowledge that does not negate its truth.

  14. fritz writes:Watch Asa squirming and trying to change the topic.Does it really matter who is winning the PR war as long as the law speaks for itself? Microsoft can win or lose the PR war. It won't matter for the end-result.The thing is, Asa knows as well as everyone else that Mozilla is as involved in this case as Opera is.It's true that Opera has taken most of the heat by reporting the crime. Only when things calmed down did Mozilla get involved because they could reap all the benefits after Opera had done all the hard work and taken all the flack. Now that Mozilla thinks the tides are turning to Microsoft's benefit they no longer want to be associated with the case.Seems Mozilla just can't be trusted, what with their inability to stand up for what's right and all that.Tomorrow something will happen which Mozilla will perceive as a blow to Microsoft, and they will once again change sides, and pretend that they were on board with the EU and the law all along.I've never seen someone change sides as quickly as Mozilla. It's hilarious.

  15. Anonymous writes:It's funny to watch Asa play the market share card when he's cornered. Never mind the fact that Opera has about 3% global market share after only 3-4 years of being a free download (Opera hasn't been free and without ads for more than a decade).

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