Notice for the OJ

 

Action brought on 10 August 2005 S Microsoft / Commission

(Case T-313/05)

Language of the case: English

Parties

Applicant(s): Microsoft Corporation (Washington, USA) [represented by: J.-F. Bellis, lawyer, I. Forrester, QC]

Defendant(s): Commission of the European Communities

Form of order sought

annul the Commission Decision of 1 June 2005;

order the Commission to bear the costs.

Pleas in law and main arguments

Following the Commission's Decision of 24 March 2004, contested in Case T-201/04 ¹ and according to which the applicant is required to disclose specifications for certain Windows protocols in order to ensure interoperability with Windows, the Commission informed the applicant by letter of 1 June 2005 that, in its opinion, the applicant is under an obligation to permit distribution to third parties - non-licensees - in source code form of software developed by competitors on the basis of the disclosed Windows protocol specifications unless the software includes an invention by the applicant satisfying criteria of novelty and inventiveness.

The applicant contests the Commission's letter of 1 June 2005 as the applicant contends that the distribution in source code form of the software in question would grant non-licensees access to the applicant's trade secrets without giving the applicant the possibility to ensure that they are kept confidential through licensing terms as is the case for licensees.

The applicant is of the opinion that the letter of 1 June 2005 imposes an illegal deprivation of the applicant's property rights and that the Commission lacked competence to impose obligations going beyond those required by the Decision of 24 March 2004 as the Commission's letter of 1 June 2005 purports to apply this Decision.

The applicant further alleges that the letter of 1 June 2005 breaches the principle of proportionality as it goes beyond what is necessary to remedy the abuse established by the Decision of 24 March 2004.

Moreover the applicant claims that the test of novelty and inventiveness set out in the letter of 1 June 2005 breaches the principle of legal certainty as it is unclear, imprecise and very difficult to apply meaningfully in a trade secret context.

Finally, the applicant submits that the letter of 1 June 2005 contravenes principles of public international law binding on the Community because it entails a worldwide and thus extraterritorial disclosure of the applicant's property rights.

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¹ - OJ C 179 of 10 July 2004, p. 18.