ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE
COURT OF FIRST INSTANCE
20 November 2008(*)
(Intervention)
In Case T-167/08,
Microsoft Corporation, represented by J.‑F. Bellis, lawyer, and I. Forrester QC,
applicant,
v
Commission of the European Communities, represented by T. Christoforou, V. Di Bucci and F. Castillo de la Torre, acting as Agents,
defendant,
APPLICATION for annulment of the decision of the Commission of 27 February 2008, fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by Decision C(2005) 4420 final of 10 November (Case COMP/C-3/37.792 – Microsoft),
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,
makes the following
Order
Background
1 Microsoft Corp. (‘Microsoft’), established in Redmond, Washington (United States), develops and markets software products.
2 Microsoft’s products include client personal computer (‘PC’) operating systems, named Windows, and work group server operating systems, named Windows Server.
3 On 10 December 1998, Sun Microsystems, Inc., established in Palo Alto, California (United States), lodged a complaint with the Commission. This complaint was directed against Microsoft’s refusal to disclose information which Sun Microsystems deemed necessary to allow interoperability of its work group server operating systems with Windows.
4 In February 2000, the Commission launched a separate investigation against Microsoft. This investigation concerned the incorporation of Windows Media Player in Windows.
5 The proceedings initiated pursuant to Sun Microsystems’ complaint and to the Commission’s separate investigation were subsequently joined under Case COMP/C-3/37.792.
6 On 24 March 2004, the Commission adopted a decision C(2004) 900 final relating to a proceeding under Article 82 EC in Case COMP/C‑3/37.792 – Microsoft (the ‘2004 Decision’).
7 In assessing Microsoft’s behaviour in the 2004 Decision, the Commission first defined the relevant product markets including the market for client PC operating systems (recitals 324 to 342 of the 2004 Decision) and the market for work group server operating systems (recitals 343 to 401 of the 2004 Decision).
8 The Commission found that both of these relevant product markets were of worldwide dimension (recital 427 of the 2004 Decision). It further considered that Microsoft held a dominant position on both of these markets, namely that for client PC operating systems (recitals 429 to 472 of the 2004 Decision) and that for work group server operating systems (recitals 473 to 541 of the 2004 Decision).
9 The Commission took the view that Microsoft had violated Article 82 EC by committing two abuses of its dominant position on the market for PC operating systems, one of which is relevant to the present case. Microsoft was held to have abused its dominant position by refusing to supply competitors with certain interoperability information (‘Interoperability Information’) and to allow them to use it for the purpose of developing and distributing competing products on the market for work group server operating systems, from October 1998 onwards (recitals 546 to 791 and Article 2(a) of the 2004 Decision).
10 The Commission decided to require Microsoft to put an end to that abusive behaviour, to refrain from repeating it or from engaging in equivalent behaviour, and to comply with a set of remedies (recitals 994 to 1053 and Articles 4 to 8 of the 2004 Decision). In particular, Article 5 of the 2004 Decision orders Microsoft to supply that which it wrongfully refused to supply to, among others, Sun Microsystems.
11 Article 7 of the 2004 Decision provides that Microsoft should submit a proposal to the Commission for the establishment of a suitable mechanism assisting the Commission in monitoring Microsoft’s compliance with the 2004 Decision. It further stipulates that the said mechanism should include an independent monitoring trustee.
12 The Commission also imposed a fine of EUR 497 196 304 on Microsoft in respect of the two abuses it had found (recitals 1054 to 1080 and Article 3 of the 2004 Decision).
13 By application lodged at the Registry of the Court of First Instance on 7 June 2004, Microsoft brought an action for annulment of the 2004 Decision or, in the alternative, annulment or reduction of the fine (Case T‑201/04). By an order of the president of the fourth chamber of 9 March 2005, the Free Software Foundation Europe (‘FSFE’) and the Software & Information Industry Association (‘SIIA’) were admitted to intervene in that case in support of the Commission, while the Computing Technology Industry Association Inc. (‘CompTIA’) and the Association for Competitive Technology, Inc. (‘ACT’) were granted leave to intervene in support of the form of order sought by Microsoft. By a further order of the president of the fourth chamber of 28 April 2005, the European Committee for Interoperable Systems (‘ECIS’) was granted leave to intervene in the case in support of the form of order sought by the Commission.
14 On 28 July 2005, the Commission adopted a decision pursuant to Article 7(1) of Regulation (EC) No 1/2003 establishing the monitoring mechanism provided for in Article 7 of the 2004 Decision, in accordance with the substantive terms envisaged in previous correspondence between it and Microsoft. That decision provides, inter alia, for the appointment of a monitoring trustee. One of four suitable candidates proposed by Microsoft was later appointed to that post.
15 On 10 November 2005, the Commission adopted a decision C(2005) 4420 final imposing a periodic penalty payment pursuant to Article 24(1) of Regulation (EC) No 1/2003 on Microsoft (the ‘Article 24(1) Decision’). Article 1 of that Decision reads as follows:
‘Microsoft Corporation shall ensure that, by 15 December 2005, it fully complies with the obligations set out in Article 5(a) and (c) of Commission Decision (C(2004) 900) of 24 March 2004.
In the absence of such compliance, a periodic penalty payment of 2 million euro per day, calculated from that date, shall be imposed on Microsoft Corporation.’
16 On 12 July 2006, the Commission adopted a decision (the ‘2006 Decision’) fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by the Article 24(1) Decision, in respect of the period between 16 December 2005 and 20 June 2006 and amending that Decision as regards the amount of the periodic penalty payment applicable in respect of any future failure to comply with its obligations under the 2004 Decision.
17 By application lodged at the Registry of the Court of First Instance on 2 October 2006, Microsoft brought an action for annulment of the 2006 Decision or, in the alternative, annulment or reduction of the fine (Case T‑271/06). By an order of the President of the Second Chamber of 14 May 2007 (the ‘order of 14 May 2007’), International Business Machines Corporation (‘IBM’), SIIA, ECIS, Oracle Corporation and Red Hat Inc. were granted leave to intervene in Case T‑271/06 in support of the form of order sought by the Commission, while CompTIA and ACT were granted leave to intervene in support of the form of order sought by Microsoft.
18 On 1 March 2007, the Commission issued a Statement of Objections stating that it intended to adopt a decision pursuant to Article 24(2) of Regulation No 1/2003 fixing the definitive amount of the periodic penalty payment which was imposed on Microsoft by the Article 24(1) Decision, as amended by the 2006 Decision, for non-compliance with its obligation to charge a reasonable remuneration for access to or use of Interoperability Information pursuant to Article 5(a) of the 2007 Decision for the period between 16 December 2005 and the date to be specified in the decision pursuant to Article 24(2) of Regulation (EC) No 1/2003.
19 By judgment of 17 September 2007 in Case T‑201/04, the Court of First Instance (Grand Chamber) annulled Article 7 of the 2004 Decision in so far as it, firstly, ordered Microsoft to submit a proposal for the establishment of a mechanism which is to include a monitoring trustee with the power to have access, independently of the Commission, to Microsoft’s assistance, information, documents, premises and employees and to the source code of the relevant Microsoft products, secondly, required that the proposal for the establishment of that mechanism provide that all the costs associated with the appointment of the monitoring trustee, including his remuneration, be borne by Microsoft and, thirdly, reserved to the Commission the right to impose such a mechanism by way of decision. For the remainder, the Court dismissed Microsoft’s action.
20 By a letter lodged at the Registry of the Court of First Instance on 24 October 2007, Microsoft informed the Court, in accordance with Article 99 of the Rules of Procedure of the Court of First Instance, that it wished to discontinue proceedings in Case T‑271/06. Accordingly, by an order of 6 December 2007, Case T‑271/06 was removed from the register of the Court of First Instance.
21 On 27 February 2008 the Commission adopted a decision (the ‘Contested Decision’) fixing the definitive amount of the periodic penalty payment, imposed on Microsoft Corporation by the Article 24(1) Decision, as amended by Article 3 of the 2006 Decision, for failure to comply with its obligation to make Interoperability Information available to interested undertakings on reasonable and non-discriminatory terms, in respect of the period between 21 June 2006 and 21 October 2007.
Procedure
22 By application lodged at the Registry of the Court of First Instance on 9 May 2008, Microsoft brought the present action for annulment of the Contested Decision or, in the alternative, annulment or reduction of the periodic penalty payment.
23 By application lodged at the Registry of the Court of First Instance on 16 August 2008, FSFE, established in Düsseldorf (Germany), and Samba Team, based in New York (United States), represented by C. Piana and T. Ballarino, lawyers, requested leave to intervene in the case in support of the form of order sought by the Commission.
24 By application lodged at the Registry of the Court of First Instance on 19 August 2008, SIIA, established in Washington, DC (United States), represented by T. Vinje, D. Dakanalis and A. Tomtsis, lawyers, requested leave to intervene in the case in support of the form of order sought by the Commission.
25 By application lodged at the Registry of the Court of First Instance on 19 August 2008, ECIS, established in Brussels (Belgium), represented by T. Vinje, M. Dolmans, N. Dodoo and A. Ferti, lawyers, requested leave to intervene in the proceedings in support of the form of order sought by the Commission.
26 By application lodged at the Registry of the Court of First Instance on 25 August 2008, IBM, established in Armonk, New York (United States), represented by M. Dolmans and T. Graf, lawyers, requested leave to intervene in the case in support of the form of order sought by the Commission.
27 By application lodged at the Registry of the Court of First Instance on 25 August 2008, the CompTIA, established in Oakbrook Terrace, Illinois (United States), represented by G. Van Gerven and T. Franchoo, lawyers, requested leave to intervene in the case in support of the form of order sought by Microsoft.
28 By application lodged at the Registry of the Court of First Instance on 25 August 2008, Red Hat, established in Raleigh, North Carolina (United States), represented by C.-D. Ehlermann and S. Völcker, lawyers, and C. O’Daly, solicitor, requested leave to intervene in the case in support of the form of order sought by the Commission.
29 By application lodged at the Registry of the Court of First Instance on 26 August 2008, Oracle, established in Redwood Shores, California (United States), represented by T. Vinje and D. Paemen, lawyers, requested leave to intervene in the case in support of the form of order sought by the Commission.
30 By application lodged at the Registry of the Court of First Instance on 26 August 2008, ACT, established in Washington, DC (United States), represented by D. Went and H. Pearson, solicitors, requested leave to intervene in the case in support of the form of order sought by Microsoft.
31 These applications for leave to intervene were served on the parties, who were invited to submit their written observations.
32 By several separate letters received at the Registry of the Court of First Instance on 24 September 2008 and 13 October 2008, the Commission submitted written observations in which it indicated that it had no observations to make on any of the requests for leave to intervene.
33 By several separate letters received at the Registry of the Court of First Instance on 26 September 2008 and 28 October 2008, Microsoft submitted written observations in which it expressed its doubts as to the admissibility of the applications to intervene of FSFE and Samba Team, SIIA and ECIS. It further indicated that it left the decision on the applications lodged by IBM, Red Hat and Oracle to the discretion of the Court and expressed its support for the request to intervene lodged by CompTIA and ACT.
Formal requirements and the time allowed for intervening
34 Pursuant to Article 115 of the Rules of Procedure, an application for leave to intervene must be made within a certain time period and must comply with certain formal requirements.
35 In the present case, each application has been lodged in accordance with those formal requirements.
36 As regards the time period applicable, pursuant to Article 115(1) of the Rules of Procedure, an application to intervene must be made within six weeks of the publication of the notice of the case in the Official Journal of the European Union, referred to in Article 24(6) of those rules, or, subject to Article 116(6) of those rules, before the decision to open the oral procedure.
37 In the present case, it is not contested that each of the eight interveners lodged its application to intervene within the abovementioned six-week period. Indeed, the notice of Microsoft’s application for annulment was published in the Official Journal on 5 July 2008 (OJ 2008 C 171 p. 41), in accordance with Article 24(6) of the Rules of Procedure, and the six‑week period for intervention therefore began to run on 6 July 2008, in accordance with Article 101(1)(a) of the Rules of Procedure. As a result, the last day of that six-week period was 16 August 2008, to which must be added ten days on account of distance, in accordance with Article 102(2) of the Rules of Procedure. Thus, the period for intervention prescribed by Article 115(1) expired at midnight on 26 August 2008.
38 Since all of the abovementioned applications to intervene in the present case were lodged at the Registry of the Court on or before 26 August 2008, those interventions will be dealt with according to Article 116(2) to (4) of the Rules of Procedure, should leave to intervene be granted.
The interveners’ interest in the result of the case
39 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, which applies to proceedings before the Court of First Instance by virtue of Article 53, first paragraph, thereof, the right to intervene in a case before the Court is open to any natural or legal person establishing an interest in the result of any case other than cases between Member States, between institutions of the Community or between Member States and institutions of the Community.
40 In the present case, in order to examine whether the applicants establish such an interest and are, therefore, entitled to intervene, a distinction is to be drawn between representative associations of undertakings, on the one hand, and other legal persons, on the other hand.
The applications lodged by representative associations of undertakings
41 The right to intervene is open to representative associations, the object of which is to protect their members in cases raising questions of principle that are liable to affect those members (orders of the President of the Court of Justice of 17 June 1997 in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen v Commission [1997] ECR I‑3491, paragraph 66, and of 28 September 1998 in Case C‑151/98 P Pharos v Commission [1998] ECR I‑5441, paragraph 6). This broad interpretation of the right of intervention open to associations, in such circumstances, is intended to facilitate the assessment of the case, whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (order in National Power and PowerGen v Commission, paragraph 66, and order of the President of the Fourth Chamber of the Court of First Instance of 9 March 2005 in Case T‑201/04 Microsoft v Commission, not published in the ECR, paragraph 31).
42 In the present case, it falls to the President to examine whether each representative association that has applied for leave to intervene in the case in support of the form of order sought by Microsoft or, as the case may be, by the Commission, establishes such an interest.
The applications for leave to intervene in the case in support of the form of order sought by Microsoft
– The application lodged by CompTIA
43 In support of its application, CompTIA submits that it is a trade association comprising thousands of members in over 100 countries active at all levels of the computer hardware and software industry as well as in information technology services, and established worldwide. Thus, CompTIA may be regarded as representative of undertakings active in the information technology sector, as has previously been recognized by the Court, most recently in the Order of 14 May 2007.
44 In addition, CompTIA provides evidence that its purpose is inter alia to ‘establish a program for conveying the views of its members to the information technology industry, governmental agencies and the public’ (Article II of CompTIA’s Bylaws). CompTIA also points out that its Board has adopted an antitrust policy statement, and that it was admitted to represent its members’ interests in Cases T‑201/04 R, T‑201/04 and T‑271/06 before the Court of First Instance. In light of these elements, the object of CompTIA may be regarded as including the protection of its members.
45 The Commission does not contest CompTIA’s application to intervene in the present proceedings while Microsoft has expressed its support for that request.
46 It should be recalled that the present case concerns the legal and administrative implementation of the 2004 Decision, challenged in Case T‑201/04, and thus has a bearing on the practical consequences to be derived from the questions of principle raised by that case, in which CompTIA was admitted to intervene. Moreover, the case appears to raise new questions concerning the commercial conditions applicable in circumstances where an owner of technical information is required to license that information to competitors in order to bring an abuse of a dominant position to an end, or to avoid the commission of such an abuse, questions which have particular implications for the information technology sector. The forthcoming judgment may, therefore, affect the activities and interests of CompTIA’s members in that sector.
47 These elements are sufficient to establish that CompTIA has an interest in the result of the present case and must, therefore, be granted leave to intervene in support of the form of order sought by Microsoft.
– The application lodged by ACT
48 In support of its application, ACT submits that it is a trade association comprising more than 3 000 members active in software development, system integration, information technology consultancy and e-commerce, and established worldwide. Thus, ACT may be regarded as representative of undertakings active in the information technology sector.
49 In addition, ACT provides evidence that its purpose is inter alia to ‘seek protection of [its members’] rights and privileges’ (Article II(D) of ACT’s Bylaws), to ‘enhance competition in and among the technology industries and to protect technology products, companies and industries from undue regulation or intervention that would undermine free and open competition by and among such products, companies and industries’ (Article II(F) of ACT’s Bylaws). Thus, the object of ACT includes that of protecting its members.
50 ACT also points out that it was admitted to intervene in Case T‑271/06 which, it argues, raised similar issues to those which fall to be decided in the present case.
51 The Commission does not contest ACT’s application to intervene in these proceedings while Microsoft has expressed its support for that request.
52 It should be recalled that the present case concerns the legal and administrative implementation of the 2004 Decision, challenged in Case T‑201/04, and thus has a bearing on the practical consequences to be derived from the questions of principle raised by that case, in which ACT was admitted to intervene. Moreover, the case appears to raise new questions concerning the commercial conditions applicable in circumstances where an owner of technical information is required to license that information to competitors in order to bring an abuse of a dominant position to an end, or to avoid the commission of such an abuse, questions which have particular implications for the information technology sector. The forthcoming judgment may, therefore, affect the activities and interests of ACT’s members in that sector.
53 These elements are sufficient to establish that ACT has an interest in the result of the case and must, therefore, be granted leave to intervene in the case in support of the form of order sought by Microsoft.
The applications for leave to intervene in the case in support of the form of order sought by the Commission
– The application lodged by SIIA
54 In support of its application to intervene, SIIA submits that it is a trade association comprising members active in the field of software development and established worldwide. SIIA may thus be regarded as representative of undertakings active in the information technology sector. SIIA further observes that several of its members are either Microsoft licensees, potential Microsoft licensees, Microsoft competitors or a combination of the above and will therefore be affected directly by the Court’s ruling regarding the terms on which the Interoperability Information should be made available.
55 In addition, SIIA submits that its purposes include that of ‘represent[ing] the common business and public policy interests of the computer software and digital content industry’, of ‘protect[ing] the [i]ndustry’, and of engaging in ‘all lawful activities’ to that effect (Article II of SIIA’s Bylaws). This wording does not expressly state that SIIA is entrusted with the protection of its members. Nevertheless, SIIA also points out that it was admitted to intervene in Cases T‑201/04 and T‑271/06 before the Court of First Instance and that it has participated, as interested third party, in the proceedings before the Commission, as is confirmed by the Contested Decision. In light of these elements, the object of SIIA may be regarded as including the protection of its members.
56 The Commission made no observations on SIIA’s application to intervene. Microsoft expressed doubts as to the admissibility of that application, in particular because SIIA objects to the current licensing terms which the Commission has considered to be in compliance with the 2004 Decision.
57 It should be recalled that the present case concerns the legal and administrative implementation of the 2004 Decision, challenged in Case T‑201/04, and thus has a bearing on the practical consequences to be derived from the questions of principle raised by that case, in which SIIA was admitted to intervene. Secondly, the case appears to raise new questions concerning the commercial conditions applicable in circumstances where an owner of technical information is required to license that information to competitors in order to bring an abuse of a dominant position to an end, or to avoid the commission of such an abuse, questions which have particular implications for the information technology sector. Thirdly, some of SIIA’s members may be directly affected, as licensees or potential licensees, by the terms on which Microsoft is obliged to provide access to the Interoperability Information. The forthcoming judgment may, therefore, affect the activities of certain members of SIIA.
58 These elements are sufficient to establish that the SIIA has an interest in the result of the case and must, therefore, be granted leave to intervene in support of the form of order sought by the Commission.
– The application by ECIS
59 In support of its application to intervene, ECIS provides evidence that it is incorporated in the form of an international non-profit making association under Belgian law. It presents itself as an association of computer information and communications technology companies. The representative list of its members indicates that, although the members of ECIS may be limited in number and although not all of them are active in the information technology sector, a number of them carry out significant activities in that sector. ECIS can, therefore, be regarded as a representative association.
60 In addition, ECIS affirms that its aims are, inter alia, to ‘promote and defend the common moral and material interests of its members’, to ‘obtain, through collective action, any measure that can facilitate the exercise of the activities of its members’, to ‘promote any initiative aimed at enhancing the interoperability of computer systems’, and to ‘represent its members vis-à-vis third parties’. ECIS also submits that it has the power to take all necessary steps, including legal action, to further the objectives of its members and to defend the interests of its members. In those circumstances, the object of ECIS may be regarded as including the protection of its members.
61 ECIS further observes that it was admitted to intervene in Cases T‑201/04 and T‑271/06 and that it participated actively and continuously throughout the administrative proceedings which led to the adoption of the Contested Decision.
62 The Commission made no observations on the application to intervene of ECIS. Microsoft raised doubts as to the admissibility of ECIS’s application on the basis that it appears only to have nine members, of which three have intervened separately in their own right while several others do not produce products which interoperate with those of Microsoft within the meaning of the 2004 Decision and do not therefore appear to be affected by the royalty rates charged by Microsoft for the Interoperability Information.
63 It should be recalled that the present case concerns the legal and administrative implementation of the 2004 Decision, challenged in Case T‑201/04, and thus has a bearing on the practical consequences to be derived from the questions of principle raised by that case, in which ECIS was admitted to intervene. Secondly, the case appears to raise new questions concerning the commercial conditions applicable in circumstances where an owner of technical information is required to license that information to competitors in order to bring an abuse of a dominant position to an end, or to avoid the commission of such an abuse, questions which have particular implications for the information technology sector. Thirdly, it appears that some of ECIS’s members may be directly affected, as licensees or potential licensees, by the terms on which Microsoft is obliged to provide access to the Interoperability Information. The forthcoming judgment may, therefore, affect the activities of certain members of ECIS.
64 It follows from the foregoing that ECIS has established an interest in the result of the case and must, therefore, be granted leave to intervene in support of the form of order sought by the Commission.
The applications lodged by other legal persons for leave to intervene in support of the form of order sought by the Commission
65 The right to intervene is open to any natural or legal person establishing an interest in the result of the case. This interest is to be defined in relation to the subject-matter of the case, which is framed by the form of order sought by the parties (order of the Court of Justice of 8 April 1981 in Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle v Council and Commission [1981] ECR 1041, at paragraph 7, and order in National Power and PowerGen v Commission, paragraph 41 above, paragraphs 51 and 52).
66 To be granted leave to intervene, a person must, therefore, establish a direct and existing interest in the grant of the form of order sought by the party whom it intends to support and thus, in the ruling on the specific act whose annulment is sought (order of the Court of Justice of 25 November 1964 in Case 111/63 Lemmerz-Werk v High Authority [1965] ECR 883, 884; order in National Power and PowerGen v Commission, paragraph 41 above, paragraph 53, and order of the President of the Court of Justice of 6 March 2003 in Case C‑186/02 P Ramondín and Ramondín Cápsulas v Commission [2003] ECR I-2415, paragraph 7). Indeed, if it were not so, any person alleging that a case is such as to affect its interests in any given way would be granted leave to intervene, with the result that the effectiveness and proper course of the procedure would be compromised (order in National Power and PowerGen v Commission, paragraph 41 above, paragraph 66; order of the Court of First Instance of 15 June 1993 in Joined Cases T‑97/92 and T‑111/92 Rijnoudt and Hocken v Commission [1993] ECR II‑587, paragraph 21, and order of the Court of First Instance of 8 December 1993 in Case T‑87/92 Kruidvat v Commission [1993] ECR II‑1375, paragraphs 13 and 14).
67 In the present case, it falls to the President to examine whether the persons that have applied to intervene in support of the form of order sought by the Commission establish such an interest.
The application lodged by the FSFE and Samba Team
68 FSFE has requested leave to intervene on the basis that it is an association whose object is to protect and promote interests which are affected by the Contested Decision. Microsoft expresses doubts as to the admissibility of FSFE’s request to intervene and objects in particular to those parts of the request where FSFE sets out the arguments on which it would rely if it were admitted to do so. Moreover, Microsoft asserts that FSFE is in fact seeking an alternative outcome not sought by either of the main parties to the present proceedings.
69 It is stated in the request to intervene that FSFE is an association but it does not submit, and a fortiori does not prove, that it is a representative association the object of which is to protect its members within the meaning of the case-law cited at paragraph 41 above. Consequently, it is not in a position to rely on the wide interpretation of the right of intervention according to which such associations may intervene in cases raising questions of principle that are liable to affect their members. However, it is not precluded from establishing, in the same way as any other natural or legal persons, a direct and existing interest within the meaning of the case-law cited at paragraph 66 above.
70 In that regard, it follows from the case-law that the persons who compete, on the affected product market, with the author of a practice that was deemed to violate Article 81 EC or Article 82 EC by a decision of the Commission establish, as such, a direct and existing interest in the result of the case brought against that decision (see orders of the President of the Second Chamber of the Court of First Instance of 23 July 1993 in Case T‑24/93 Compagnie maritime belge transports and Compagnie maritime belge v Commission, paragraph 5; of the President of the Second Chamber of the Court of First Instance of 13 June 1994 in Case T‑542/93 Reti Televisive Italiane v Commission, paragraph 9, and of the President of the First Chamber of the Court of First Instance of 6 May 2004 in Case T‑271/03 Deutsche Telekom v Commission, paragraph 2).
71 FSFE recalls that its purposes include, in essence, the promotion and distribution of what it terms ‘free software’ and, in particular, of the GNU operating system. The application for leave to intervene, read in combination with the 2004 Decision (recitals 27 and 87), reveals, first, that the GNU general public licence is a software licensing scheme created by FSFE’s sister organisation in the United States, the Free Software Foundation, and promoted within Europe by the FSFE. It reveals, second, that the GNU/Linux operating system consists of an open source kernel, or core operating system, that is developed by Linux and marketed under the GNU general public licence. Thus, FSFE has an interest in the present case by virtue of the fact that it promotes products that are sold on some of the very markets deemed relevant for the purpose of the 2004 Decision as being affected by Microsoft’s conduct, and that compete with Microsoft’s products on these markets. As the FSFE points out, it was admitted to intervene in Cases T‑201/04 R and T‑201/04 before the Court of First Instance on the basis of such interests.
72 With respect to the present case, the FSFE adds that during the period for which Microsoft was found, in the Contested Decision, to be in breach of its obligations to make Interoperability Information available on reasonable and non-discriminatory terms, it was proposing licence terms which were incompatible with the GNU general public licence, in particular to the extent that it sought to impose running royalties on a per copy basis.
73 These elements establish that FSFE has a direct and existing interest in the result of the case and must, therefore, be granted leave to intervene in the case in support of the form of order sought by the Commission. However, to the extent that the FSFE has described, in its request to intervene, certain substantive arguments that it would like to make, the Court recalls that only substantive arguments put forward in the statement in intervention, and which support the form of order sought by the Commission, can be taken into account.
74 Secondly, regarding Samba Team, that entity describes itself as a group of developers, dedicated to the development of a set of interoperability protocols known as Samba and claims that, as such, it is a major competitor to Microsoft in the field of workgroup servers. Microsoft expresses doubts as to the admissibility of Samba Team’s request to intervene.
75 According to case-law which is now well established, where one and the same application is brought by several applicants, one of which is admissible, there is no need to consider whether the other applicants are entitled to bring proceedings (see, to that effect, Case C‑313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraph 31, and Case T‑282/06 Sun Chemical Group et al. v Commission [2007] ECR II‑2149, paragraph 50; see also, to that effect, Joined Cases T‑447/93 to T‑449/93 AITEC and Others v Commission [1995] ECR II‑1971, paragraph 82). It is appropriate to apply that case law by analogy and thus to hold that, in the case of the present request to intervene, there is no need to consider whether Samba Team is individually entitled to bring proceedings.
76 In the light of the above, FSFE and Samba Team should be granted leave to intervene in the case in support of the form of order sought by the Commission.
The application lodged by IBM
77 In support of its application, IBM submits that it has a direct and existing interest in the grant of the form of order sought by the Commission and that it should, therefore, be granted leave to intervene in the case. IBM describes itself as an undertaking specialising in the development, production and marketing of information technology systems, equipment, software, services and ancillary products. It states, in particular, that its activities include the development and marketing of server operating systems in competition with Microsoft and that it is also a significant customer for Microsoft’s server operating systems, which it markets together with certain of the server computers that it sells. IBM also indicates that it has signed the licence agreement that Microsoft makes available under its Workgroup Server Protocols Program for the disclosure of Interoperability Information pursuant to the 2004 Decision. It submits that the annulment of the Contested Decision would enable Microsoft to charge unreasonable fees after the initial five-year period of the licence agreement without effective penalty.
78 Microsoft disputes the assertion that the annulment of the Contested Decision would allow it to charge unreasonable fees since its ability to revise the licence fee on any extension beyond the initial five-year term is very limited. It leaves it to the discretion of the Court to draw the appropriate conclusions in relation to IBM’s application to intervene.
79 It must be held that, although it questions IBM’s statement as to the consequences of the Contested Decision’s annulment, Microsoft does not dispute IBM’s assertion that it is one of Microsoft’s competitors on the markets for server operating systems. Nor does Microsoft dispute that IBM entered into the licence agreement that Microsoft makes available under its Workgroup Server Protocols Program for the disclosure of Interoperability Information pursuant to the 2004 Decision. It should be recalled that the Contested Decision was adopted by the Commission, in particular, because it considered that the terms under which Microsoft was offering to grant access to the Interoperability Information were incompatible with its obligations under the 2004 Decision.
80 In the light of these elements it must be held that IBM has a direct and existing interest in the result of the present case.
81 As regards the fact that IBM is a member of two associations which have also applied to intervene in the present proceedings, it is sufficient to recall that not all members of SIIA and of ECIS have applied to intervene. It follows that both the associations concerned and their members, including IBM, must be allowed to intervene in the present case as their respective applications to do so cannot be regarded as purely duplicative (see the Order of 14 May 2007, paragraphs 73 and 74).
82 It follows from all of the foregoing that IBM should be granted leave to intervene in the case in support of the form of order sought by the Commission.
The application lodged by Red Hat
83 In support of its application, Red Hat describes itself as an open source software developer and distributor. It contends that its open source software products compete with Microsoft’s dominant products in a number of software markets, including the market for work group server operating systems. Red Hat claims to have been actively involved in supporting the Commission’s enforcement of the remedy contained in the 2004 Decision. Red Hat argues that, as was the case with the Commission’s 2006 Decision, the periodic penalty payments with which Microsoft was initially threatened and which were then imposed under the Contested Decision have been essential to ensuring that Microsoft would make available the Interoperability Information on terms that would enable open source products such as its own, particularly those relying on the GNU general public licence, to be developed and marketed.
84 It further points out that it was admitted to and participated as an interested third party in the administrative proceedings before the Commission leading to the adoption of the Contested Decision. Red Hat considers that these factors give rise to a direct and existing interest in the result of the present case.
85 Microsoft questions whether Red Hat truly has an interest in the outcome of the present proceedings, since it has not approached Microsoft to obtain a licence under the Workgroup Server Protocols Program. It leaves it to the discretion of the Court to draw the appropriate conclusions in relation to Red Hat’s application to intervene.
86 It must be held that, although it questions Red Hat’s interest in obtaining a licence of the Interoperability Information at issue, Microsoft does not contest Red Hat’s assertion that it competes with Microsoft specifically on the work group server market. Furthermore, although it points out that Red Hat has not so far obtained a licence under the Workgroup Server Protocols Program, Microsoft does not dispute that Red Hat played an active part in the administrative procedure.
87 The Court considers that Red Hat’s failure so far to take out a Workgroup Server Protocols Program licence does not suffice to justify the conclusion that it has no interest in the outcome of the present proceedings. On the contrary, in light of the fact that it appears to be a competitor of Microsoft on the relevant product market, combined with the fact that it participated in the administrative proceedings, Red Hat must be regarded as having a direct and existing interest in the result of the present case.
88 As was noted above, at paragraph 81, both SIIA and ECIS, as well as their members, including Red Hat, must be allowed to intervene in the present case as their respective applications to do so cannot be regarded as purely duplicative.
89 In the light of the foregoing, Red Hat should be granted leave to intervene in the case in support of the form of order sought by the Commission.
The application lodged by Oracle
90 In support of its application, Oracle submits that it has a direct and existing interest in the grant of the order sought by the Commission and that it should, therefore, be granted leave to intervene in the case. Oracle describes itself as an undertaking providing enterprise software and related services, including operating systems, database software, application middleware, enterprise applications, and related support services. It contends that many of its products compete with Microsoft products and at the same time interoperate with Microsoft’s Windows operating systems, and that these products have been affected by Microsoft’s technical non-disclosure practices which are the subject-matter of the 2004 Decision.
91 Oracle further claims that following the 2004 Decision and the elimination of anticompetitive interoperability barriers that it promised, Oracle developed plans to enter the operating system business, leading to the launch of the Unbreakable Linux operating system offering in October 2006. According to Oracle, the anticipated interoperability, and hence the viability, of Oracle’s Unbreakable Linux operating system offering is directly affected by Microsoft’s failure adequately to document the Interoperability Information required to be disclosed under the 2004 Decision and to make this documentation available on reasonable and non-discriminatory terms.
92 Oracle also points out that it was admitted to and participated as an interested third party both in the administrative proceedings before the Commission leading to the adoption of the 2004 Decision and in those which led to the adoption of the Contested Decision. Moreover, Oracle notes that it was admitted as an intervener in Case T‑271/06.
93 Microsoft questions Oracle’s assertion that its Unbreakable Linux product is an operating system and denies that it is in the same market, and competes with, Microsoft’s own operating systems. Microsoft leaves it to the discretion of the Court to draw the appropriate conclusions in relation to Oracle’s application to intervene.
94 It should be recalled that the Contested Decision was adopted by the Commission because it considered, in particular, that the licence terms on which Microsoft was prepared to allow its competitors to have access to the Interoperability Information were incompatible with its obligations under the 2004 Decision and could therefore prejudice their commercial interests. That being so, it is sufficient to note that Microsoft does not deny that Oracle has a commercial interest in the success of the version of Linux distributed by Red Hat since, according to Microsoft, Oracle’s Unbreakable Linux offering is a support program for that operating system. Microsoft has not claimed that Red Hat’s operating system is not in competition with Microsoft’s own operating systems. The annulment of the Contested Decision could therefore affect the commercial interests of Oracle, at least as an indirect competitor of Microsoft, through its interest in the success of Red Hat’s operating system. To the extent that Oracle offers other products that compete with those of Microsoft on the relevant markets its interests could also be directly affected, as a competitor of Microsoft, by the outcome of the present proceedings.
95 In the light of these elements, it must be held that Oracle has a direct and existing interest in the result of the present case.
96 As was noted above, at paragraph 81, both SIIA and ECIS, as well as their members, including Oracle, must be allowed to intervene in the present case as their respective applications to do so cannot be regarded as purely duplicative.
97 In view of the foregoing, Oracle should be granted leave to intervene in the case in support of the form of order sought by the Commission.
Costs
98 Article 87(1) of the Rules of Procedure provides that a decision as to costs shall be given in the final judgment or in the order which closes the proceedings. It is therefore appropriate, at this stage, to reserve the costs.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The Free Software Foundation Europe and Samba Team, the Software and Information Industry Association, the European Committee for Interoperable Systems, International Business Machines Corporation, Red Hat Inc. and Oracle Corporation, are granted leave to intervene in Case T‑167/08 in support of the form of order sought by the Commission.
2. The Computing Technology Industry Association, Inc., and the Association for Competitive Technology, Inc., are granted leave to intervene in Case T‑167/08 in support of the form of order sought by Microsoft.
3. The Registrar shall serve the procedural documents on the interveners, mentioned at paragraphs 1 and 2 above.
4. The interveners mentioned at paragraphs 1 and 2 above shall be allowed a period of time in which to lodge a statement in intervention containing the pleas-in-law and arguments upon which they rely.
5. Costs are reserved.
Luxembourg, 20 November 2008.