Why hold a hearing in the EU if key decision makers are unable to attend?

For as long as I’ve been at Microsoft (since 1994), there has always been keen interest in the antitrust issues raised by the success of Windows.

Interest peaked after we included a Web browser in Windows 95. That design choice led to the U.S. government case against Microsoft, which was resolved in 2002 with a consent decree and court rulings designed to promote competitive opportunities for browser vendors. Today Microsoft’s integration of the browser into Windows is regulated by these rulings, and computer users can choose Internet Explorer, Mozilla Firefox, Apple Safari, Google Chrome, Opera or other browsers that run on Windows.

A few months ago many of us at Microsoft had a “back to the future” moment when the European Commission brought a new case against Microsoft—concerning the inclusion of a Web browser in Windows.

Earlier this year, the Commission sent Microsoft its preliminary assessment that the inclusion of Internet Explorer in Windows since the mid-1990s violates European competition law.  We believe we have a strong defense to this claim, especially given the remedies put in place by the U.S. courts and the widespread usage of competing browsers. It is too early to know how the case will end, but whatever happens Microsoft is absolutely committed to offering Windows 7 in Europe in a manner that is fully compliant with European law.

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. We asked for an opportunity to present our arguments at a hearing, which is a right afforded to defendants under European Commission procedures. Unfortunately, it now appears that no hearing will be held. 

At a competition law hearing in Europe, the Commission staff, the defendant, competitors, and other interested parties offer their views. There is no judge or other fact-finder, and no real rules of evidence, but the hearing does provide an opportunity for senior officials at the Commission and at the national competition authorities of the European Member States to listen to and assess the arguments of the parties. 

The dates the Commission selected for our hearing, June 3-5, coincide with the most important worldwide intergovernmental competition law meeting, the International Competition Network (ICN) meeting, which will take place this year in Zurich, Switzerland. The ICN meeting will be especially well attended this year because it will be the first international meeting attended by representatives of the Obama administration. 

As a result, it appears 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 our hearing in Brussels. We raised concerns about this scheduling conflict with the Commission the very same day we were notified of the proposed hearing date. We asked the Commission to consider alternative dates and expressed our serious concern that holding a hearing during the same days as the ICN would make it much more difficult for the Commission’s and Member States’ key decision makers to attend. We pointed out that there’s no legal or other reason that the hearing needs to be held the first week of June.  We believe that holding the hearing at a time when key officials are out of the country would deny Microsoft our effective right to be heard and hence deny our “rights of defense” under European law. 

Unfortunately, the Commission has informed us that June 3-5 are the only dates that a suitable room is available in Brussels for a hearing. Thus, the Commission has declined to reschedule the hearing despite our offer to find and outfit a suitable room ourselves at another time.

The Commission has been helpful in encouraging some officials and staff who will remain in Brussels to attend our hearing. While we appreciate that, we have confirmed that many senior officials and national competition authority representatives will be unable to attend some or all of the hearing due to the ICN meeting. While we would like an opportunity to present our arguments in an oral hearing, we do not think it makes sense to proceed if so many of the most important EC officials and national competition authorities cannot attend. 

Therefore, we reluctantly notified the Commission that we will not proceed with a hearing on June 3-5. While Microsoft maintains its request for a hearing at a different date, that request has been denied and the Commission hearing officer has deemed Microsoft to have withdrawn its request for a hearing.

About the Author

Vice President & Deputy General Counsel, Microsoft

Dave Heiner is Vice President and Deputy General Counsel at Microsoft, where he heads up two organizations within the company’s legal department – the Antitrust Group and the Corporate Standards Group. Mr. Heiner is responsible for antitrust counseling, representation of the company before antitrust regulatory agencies worldwide and work with standard setting organizations. Before joining Microsoft in 1994, Mr. Heiner practiced at Sullivan & Cromwell in New York. Mr. Heiner serves on the Board of Probono.net, a national non-profit that works to increase access to justice for the poor through efficient use of technology. Mr. Heiner has handled a number of immigration cases through Volunteer Advocates for Immigrant Justice, a Seattle-based affiliate of Kids in Need of Defense (KIND).