European Commission Fines Microsoft for Noncompliance with Browser Choice Commitments

This posting was written by William Zale, contributor to Antitrust Law Daily.

The European Commission announced on March 6 that it has imposed a €561 million fine on Microsoft for failing to comply with its commitments to offer users a browser choice screen enabling them to easily choose their preferred web browser.

In statement issued today, Microsoft said, “We take full responsibility for the technical error that caused this problem and have apologized for it. We provided the Commission with a complete and candid assessment of the situation, and we have taken steps to strengthen our software development and other processes to help avoid this mistake—or anything similar—in the future.”

In 2009, the Commission had made Microsoft’s browser choice commitments legally binding until 2014. The Commission found that Microsoft failed to roll out the browser choice screen with its Windows 7 Service Pack 1 from May 2011 until July 2012. 15 million Windows users in the EU did not see the choice screen during this period.

Until November 2010, 84 million browsers were downloaded through the choice screen, according to the Commission. When the failure to comply was detected and documented in July 2012, the Commission opened an investigation and, before taking a decision, notified to Microsoft its formal objections in October 2012.

Under Article 9 of the EU’s Antitrust Regulation, the Commission may conclude an antitrust investigation by making legally binding the commitments offered by the companies concerned. Such an Article 9 decision does not conclude that there is an infringement of EU antitrust rules and does not impose a sanction. However, it legally binds the companies concerned to comply with the commitments. If a company breaks such commitments, Article 23(2) of the Antitrust Regulation empowers the Commission to impose fines of up to 10% of its total turnover in the preceding business year.