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Vol. 1, N° 2, Summer 1994 EC COMPETITION POLICY NEWSLETTER PAGE 17

Press releases issued on the most important developments

FOLLOWING AN UNDERTAKING BY MICROSOFT TO CHANGE ITS LICENSING PRACTICES, THE

EUROPEAN COMMISSION SUSPENDS ITS ACTION FOR BREACH OF THE COMPETITION RULES.

Mr. Karel Van Miert, the Commissioner responsible for

competition policy, has obtained an undertaking signed 15

July 1994 from Microsoft to modify its licensing practices.

This followed a period of intense negotiations involving

Microsoft and a team of senior officials drawn from the

European Commission and the United States Department of

Justice. These negotiations also resulted in Microsoft settling

charges brought by the US DoJ by signing a consent decree.

This undertaking is very significant at least in two respects.

It is the most important case in the software industry until

now. It opens up the market for the operating system

software which is at the heart of the estimated 150 million

computers in use worldwide and is of strategic importance

to the development of some of the fastest growing sectors of

the Information Technology industries. Furthermore, the

negotiation of the undertaking was a historic and

unprecedented piece of co-operation between the EC

Commission and the United States Department of Justice. It

serves as an important model for the future, as it shows how

the two authorities can combine their efforts to deal

effectively with giant multinational companies. The success

of this joint approach sends a strong signal to all

multinational companies, including those in other sectors.

Background

Microsoft, founded in 1975 and based in Redmond,

Washington, has become the largest developer, manufacturer

and supplier of PC software in the world, with a worldwide

turnover of US $ 3.7 billion and a net profit of almost US $

1 billion in 1993, a third of which was derived within the

European Union. Microsoft supplies the MS-DOS and

Windows operating systems used in more than 120 million

personal computers and therefore enjoys a virtually

unchallenged leadership in this market.

The Commission launched an investigation of Microsoft's

licensing practices following a complaint dated 30 June 1993

from Novell, the world's second largest PC software

company based in Provo, Utah. Novell is mainly known for

its networking software, but also supplies operating system

software in competition with Microsoft. Novell alleged that

Microsoft blocked competitors out of the market for PC

operating system software by certain anticompetitive

practices. In particular, the structure of Microsoft's standard

agreements for licensing software to PC manufacturers was

said to exclude competitors from selling their products.

Manufacturers were required to pay royalties to Microsoft

based on the number of PCs shipped regardless of whether

such PCs contained preinstalled Microsoft software, a

competitor's software, or no software at all.

After investigating the complaint, the Commission was

concerned that:

- the use of "per processor" and "per system" licences, i.e.

clauses requiring payment of a royalty on every computer

produced by a PC manufacturer either containing a particular

processor type or belonging to a particular model series

designated by that manufacturer, regardless of whether a

particular computer is shipped with preinstalled Microsoft

software;

- the use of "minimum commitments" in these contracts, ie

requirements that licensees pay for a fixed minimum number

of copies of a particular product regardless of actual use; and

- the duration of Microsoft's licence agreements,

had the effect of foreclosing the European market for PC

operating systems software, thereby infringing Articles 85 and

86 of the EC Treaty .

At the same time the United States antitrust authorities were

investigating similar concerns. Investigations had been

launched by the Federal Trade Commission. When, in early

1993, this body was split on the issue on whether or not to

take action, the case was continued by the Antitrust Division

of the US Department of Justice. During these investigations,

Microsoft consented to the exchange of information between

the Commission and the US Department of Justice by waiving

its right to secrecy with respect to both authorities. A number

of contacts between DG IV and the DoJ followed in which a

coordinated approach was prepared. However, this type of

joint action was independent of the Cooperation Agreement

in competition matters concluded in 1991 between the EC

Commission and the US Department of Justice whose validity

is still under scrutiny by the Court of Justice.

At the time when the Commission was about to open the

formal procedure and to issue a statement of objections,

Microsoft indicated its willingness to reach a settlement with

the authorities concerned. In order to reach such a settlement,

the Commission and the US Department of Justice agreed to

negotiate jointly with Microsoft. To this end, trilateral talks

were held both in Brussels and in Washington DC. They

resulted in an Undertaking from Microsoft to both authorities.

The Undertaking

The Undertaking obtained by the European Commission and

the US Department of Justice provides that Microsoft will not

enter into licence contracts with a duration of more than one

year, will not impose minimum commitments on licensees

and will not use per processor clauses any longer. Per system

licences will be allowed only if licensees are clearly given

flexibility to purchase non-Microsoft products and to avoid

payment of royalties to Microsoft in such instances.

In addition, any provisions of existing licence contracts

which breach these provisions will not be enforced, and

licensees have an option to end existing contracts.

This Undertaking has a duration of six and a half years.

(

A similar press information was issued by the US

Department of Justice for immediate release on Saturday, 16

July 1994

). IP/94/653

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