Microsoft said last week that it had seen documents showing that
there had been possible “inappropriate contacts” between the
Trustee and competitors of the software giant.
These called into question the independence of the Trustee and
whether there had been a violation of principles of due process,
Microsoft alleged. It also accused the Commission of withholding
documents and colluding with its competitors.
In response, the Commission today published a decision defining
the role of the Trustee in the Microsoft case. This is the formal
document setting the parameters for the Trustee’s work in
monitoring Microsoft’s compliance with a ruling, from March 2004,
that Microsoft broke European competition law.
In particular, the decision provides that: “the Trustee should
not only be reactive, but should play a proactive role in the
monitoring of Microsoft’s compliance”. It also makes it clear that
the Trustee, under the supervision of the Commission, has to
monitor Microsoft’s compliance on his own initiative.
In order to fulfil that proactive role and to form his own,
impartial view on complex technical questions, the Trustee must be
in a position to gather views on compliance issues through contacts
not only with Microsoft engineers, but also with potential
beneficiaries of the remedy.
Accordingly, says the Commission, the Trustee’s contacts with
such potential beneficiaries are part of his obligations under the
Trustee Decision and not in any way a form of inappropriate
collusion.
The Commission then highlights some of the rights and
obligations of Microsoft towards the Trustee and of the Trustee
towards Microsoft and third parties, as set out in the Decision.
These provide that:
- Microsoft is obliged to provide the Trustee with access to
information and Microsoft staff necessary to monitor Microsoft’s
compliance with the March 2004 Decision;
- the Trustee and his Advisors shall not make any public
statements relating to their functions;
- a non-confidential version of his final report will form part
of the case file and will therefore be accessible under the
Commission’s rules on Access to the File in competition cases;
and
- all other communications between the Commission and the Trustee
shall form part of the Commission’s “internal documents” (documents
which are in principle not accessible under the Commission’s Access
to the File rules). Microsoft has been querying the number of
documents to which it has been given access.
The Commission has also published the curriculum vitae of the
Monitoring Trustee, Professor Neil Barrett, as well as the
curricula vitae of his advisors. Professor Barrett was appointed
from a panel suggested by Microsoft.
