On 6 March 2013, the European Commission (Commission) imposed a
EUR 561 million fine on Microsoft for failure to comply with its
binding commitments to enable Windows users easily to choose their
preferred web browser. This is the first time the Commission has
imposed fines for failure to comply with a so-called
"commitment decision", i.e. where the Commission accepts
binding commitments from companies that are suspected of having
breached competition law, in order to address competition concerns,
and closes the investigation without making a finding as to whether
or not there has been an infringement.
On 16 December 2009, the Commission adopted a commitment decision,
accepting binding commitments offered by Microsoft to meet certain
competition concerns, which related to the allegedly abusive tying
of Microsoft's web browser, Internet Explorer to its PC
operating system, Windows. In order to address the Commission's
concerns, Microsoft committed to display a browser choice screen to
Windows users within the European Economic Area (EEA) until 2014.
This would enable Windows users to choose which web browser to
install from a selection of the most widely used web
browsers.
However, the choice screen was not displayed on some computers.
Following a number of complaints, the Commission opened an
investigation in July 2012 into Microsoft's possible breach of
binding commitments. During the investigation, Microsoft
acknowledged that it had failed to display the choice screen to
users of Windows 7 Service Pack 1.
The Commission found that Microsoft had failed to comply with its
commitments by not displaying the choice screen to users who have
Internet Explorer set as the default browser. The Commission
concluded that Microsoft's failure to comply lasted for 14
months and affected approx. 15.3 million users. As a
counterfactual, the Commission noted that the choice screen, when
functioning, was used to download 84 million web browsers between
March and November 2010. Although Microsoft argued that the failure
to provide the choice screen resulted from a technical error, the
Commission considered Microsoft's breach to be a serious one.
The Commission stated that, given Microsoft's resources and
know-how, Microsoft should have been able to avoid such errors and
should have had better processes in place to ensure that the choice
screen was correctly displayed to affected users. In setting the
fine, the Commission took into account, as a mitigating
circumstance, the fact that Microsoft cooperated with the
Commission by providing evidence which helped the Commission to
investigate the case more efficiently.
The EUR 561 million fine amounts to approx. 1 per cent of
Microsoft's worldwide turnover for its fiscal year ending 30
June 2012 and is the latest in a series of fines imposed on
Microsoft by the Commission and EU courts, now totalling more than
EUR 2 billion.
As stated above, a commitment decision enables the Commission to
close antitrust investigations without finding an infringement, in
exchange for the relevant commitments. The Commission has recently
made extensive use of commitment decisions.
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