Background
On 23 March 2004 the European Commission adopted a finding that Microsoft had infringed EU competition rules by "abusing its dominant position in the software market, causing a huge damage both on competitors and consumers" in connection with Microsoft's refusal to supply competitors with 'interoperability information' and the typing of Windows Media Player with the Windows PC operating system.
On 17 January 2007 the Court of First Instance (CFI) rejected Microsoft's appeal to that decision confirming that Microsoft can no longer prevent the market from functioning properly by imposing its products and services upon people. Microsoft has chosen not to appeal the CFI decision.
MEP Questions
Green Party members, Heide Rühle and Alaine Lipietz (the MEP's), last week filed a question with the European Parliament asking whether the above EU findings against Microsoft prevent it from participating in future public procurements.
This question reflects that the Public Contracts Directive 2004/18/EC states candidates or tenderers shall be excluded from participating in a public contract if: (a) they have been convicted by a judgment which has the force of res judicata in accordance with the legal provisions of the country of any offence concerning his professional conduct; or (b) they have been guilty of grave professional misconduct proven by any means which the contracting authority can demonstrate.
The long running affair between Microsoft and the EU has resulted in various judgments relating to Mircrosoft's professional conduct. Notwithstanding the 2004 decision, the European Commission imposed a fine of €280.5m in 2006 for infringement of European competition law and following the CIF judgment in 2007, imposed a substantial fine of €899m for not providing interoperability information on reasonable terms, as was required by the 2004 decision.
Since Microsoft did not appeal the CIF decision, the MEP's maintain that the ruling has the force of res judicata i.e. the validity of the court's findings is no longer contested.
Accordingly, the MEP's rightfully write, "could we therefore consider that Microsoft does not fulfil the conditions to participate in such procurement procedure?"
The MEP's question is a valuable reminder to companies that involvement in public procurement can be curtailed if they are convicted of offences.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
