Action brought on 2 October 2006 - Microsoft v Commission

(Case T-271/06)

Language of the case: English

Parties

Applicant: Microsoft Inc (Seattle, USA) (represented by: J-F. Bellis, G. Berrisch, lawyers, I. S. Forrester, QC and D. W. Hull, Solicitor )

Defendant: Commission of the European Communities

Form of order sought

Annulment of Commission Decision C(2006)3143 final of 12 July 2006 fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by Decision C(2005)4420 final and amending that decision as regards the amount;

in the alternative, annulment or reduction of the periodic penalty payment imposed; and

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

By a decision of 10 November 2005 (the "Article 24(1) decision") adopted pursuant to article 24(1) of Regulation 1/2003, the Commission imposed a periodic penalty payment in the event the applicant failed to fulfil its obligation to provide Interoperability Information pursuant to Decision C(2004)900 final of 24 March 2004 (the "2004 decision"). The contested Decision C(2006)3143 of 12 July 2006 fixed the definitive amount of the periodic penalty payment for the period of 16 December 2005 through 20 June 2006 at 280.5 million EUR.

By means of its application, the applicant seeks annulment of the contested decision on the basis of the following grounds:

Firstly, the applicant claims that the Commission violated its duty to give clear information and precise instructions as to what it required for compliance with the 2004 decision. The applicant deemed such information and instructions to be necessary allowing it to opt for the expected means to satisfy the obligation to provide Interoperability Information. In this respect, the applicant further claims that the Commission omitted to include the relevant instructions in the 2004 decision as well as in the Article 24(1) decision itself, whether prior to adoption of the latter, nor until several months had elapsed after such decision was taken.

Secondly, the applicant submits that the Commission failed to prove to the requisite standard that the applicant did not comply with its obligation to provide Interoperability Information as required under the 2004 decision. Precisely, the Commission allegedly failed to put forward clear and convincing reasoning supported by sufficiently precise and coherent evidence that (1) the technical documentation that the applicant made available on 15 December 2005 did not comply with the requirements of the 2004 decision; and (2) none of the subsequent steps that the applicant undertook from 16 December 2005 to June 2006 were sufficient to ensure compliance. Specifically and according to the applicant, the Commission thus failed to objectively evaluate the evidence before it and applied the wrong standard in evaluating the technical documentation.

The applicant advances as a third ground of annulment the fact that the Commission denied it the right to be heard before adopting the contested decision, the reference period for the imposition of the periodic penalty payment being 16 December 2005 through 20 June 2006 while the Statement of Objections was issued on 21 December 2005, not covering a single day of the reference period.

Fourthly, the applicant contends that the Commission violated its rights of defence by denying it full access to the file, including communications between the Commission, on the one hand, and its experts, on the other.

Finally, the applicant suggests that the amount of the periodic penalty payment is excessive and disproportionate as the Commission failed to take into account the complexity of the compliance obligation, while it completely disregarded the applicant's substantial good faith efforts to comply with the Commission's previous decisions.

____________