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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
22 December 2004 (1)

(Proceedings for interim relief – Article 82 EC)

In Case T-201/04 R,

Microsoft Corporation, established in Redmond, Washington (United States of America), represented by J.‑F. Bellis, lawyer, and I.S. Forrester QC,

applicant,

supported by

The Computing Technology Industry Association, Inc., established in Oakbrook Terrace, Illinois (United States of America), represented by G. van Gerven and T. Franchoo, lawyers, and B. Kilpatrick, Solicitor,

Association for Competitive Technology, Inc., established in Washington, DC (United States of America), represented by L. Ruessmann and P. Hecker, lawyers,

TeamSystem SpA, established in Pesaro (Italy),

Mamut ASA, established in Oslo (Norway),

represented by G. Berrisch, lawyer,

DMDsecure.com BV, established in Amsterdam (Netherlands),

MPS Broadband AB, established in Stockholm (Sweden),

Pace Micro Technology plc, established in Shipley, West Yorkshire (United Kingdom),

Quantel Ltd, established in Newbury, Berkshire (United Kingdom),

Tandberg Television Ltd, established in Southampton, Hampshire (United Kingdom),

represented by J. Bourgeois, lawyer,

Exor AB, established in Uppsala (Sweden), represented by S. Martínez Lage, H. Brokelmann and R. Allendesalazar Corcho, lawyers,

interveners,

v

Commission of the European Communities, represented by R. Wainwright, W. Mölls, F. Castillo de la Torre and P. Hellström, acting as Agents, with an address for service in Luxembourg,

defendant,

supported by

RealNetworks, Inc., established in Seattle, Washington (United States of America), represented by A. Winckler, M. Dolmans and T. Graf, lawyers,

Software & Information Industry Association, established in Washington, DC, represented by C.A. Simpson, Solicitor,

Free Software Foundation Europe eV, established in Hamburg (Germany), represented by C. Piana, lawyer,

interveners,

APPLICATION for suspension of the operation of Articles 4, 5(a) to (c) and 6(a) of Commission Decision C (2004) 900 final of 24 March 2004 relating to a proceeding under Article 82 EC (Case COMP/C 3/37.792 – Microsoft),



THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES



makes the following



Order




The background to the dispute

1
Microsoft Corporation (‘Microsoft’) develops and markets a variety of software products, including, in particular, operating systems for servers and ‘client PCs’.

2
On 10 December 1998, Sun Microsystems Inc. (‘Sun Microsystems’), a company established in California (United States of America) which supplies inter alia server operating systems, lodged a complaint with the Commission. In its complaint, Sun Microsystems criticised Microsoft’s refusal to disclose to it the technology necessary to allow interoperability of its work group server operating system with the Windows Client PC operating system. Sun Microsystems claimed that the technology which it requested was necessary to allow it to compete on the work group server operating system market.

3
On 2 August 2000, the Commission sent Microsoft a statement of objections. That statement of objections related essentially to certain issues concerning interoperability between Windows Client PC operating systems and the server operating systems of other suppliers (‘client-to-server interoperability’). Microsoft replied to that first statement of objections on 17 November 2000.

4
On 29 August 2001, the Commission sent Microsoft a second statement of objections, in which it repeated its previous objections concerning client-to-server interoperability. It also raised a number of issues concerning interoperability between work group servers (‘server-to-server interoperability’). Finally, the Commission raised certain issues relating to the integration of the Windows Media Player software in the Windows operating system. Notification of this latter objection resulted from an investigation launched in February 2000 at the Commission’s initiative. Microsoft replied to the second statement of objections on 16 November 2001.

5
On 6 August 2003, the Commission sent Microsoft a statement of objections designed to supplement the two previous statements of objections. Microsoft replied to this supplementary statement of objections by letters of 17 and 31 October 2003.

6
A hearing was held by the Commission on 12, 13 and 14 November 2003. By letter of 1 December 2003, Microsoft lodged written observations on the issues which had been raised during the hearing by the Commission, the complainant and interested third parties. Following a final exchange of correspondence between the Commission and Microsoft, the Commission adopted, on 24 March 2004, a decision relating to a proceeding under Article 82 EC in Case COMP/C‑3/37.792 – Microsoft (‘the Decision’).


The Decision

7
According to the Decision, Microsoft infringed Article 82 EC and Article 54 of the Agreement on the European Economic Area (‘EEA’) by reason of two abuses of a dominant position.

8
The Commission first identified three distinct product markets and found that Microsoft had a dominant position on two of them. The Commission then identified two types of abusive conduct by Microsoft on those markets. Consequently, the Commission imposed a fine and a number of remedies on Microsoft.

I – The relevant markets identified in the Decision and Microsoft’s dominant position on two of those markets

A – The relevant markets identified in the Decision

9
The first product market identified in the Decision is the client PC operating system market (recitals 324 to 342). An operating system is a software product which controls the basic functions of a computer and allows the user to use the computer and to run applications on it. Client PCs are multifunctional computers designed to be used by one person at a time and may be linked to a network.

10
The second product market identified in the Decision is the work group server operating system market (recitals 343 to 401). The Decision defines ‘work group services’ as the basic network infrastructure services used by office workers in their day-to-day work for three sets of distinct services, namely sharing files stored on servers, sharing printers, and the ‘administration’ of the manner in which users and groups of users can access network services (‘group and user administration’) (recital 53). This latter set of services consists in particular in ensuring that users can access and use the network resources securely, by, inter alia, first authenticating users and then checking that they are authorised to perform a given action (recital 54).

11
According to the Decision, the three sets of services identified in the preceding paragraph are closely interrelated within server operating systems (recital 56). The Decision adds in that regard that ‘work group server operating systems’ are operating systems designed and marketed to deliver those three sets of services collectively to a relatively small number of client PCs linked together in a small to medium-sized network (recitals 53 and 345 to 368). The Decision also states that the absence of demand-side substitutable products is confirmed by Microsoft’s pricing strategy (recitals 369 to 382) and by the importance of the interoperability of work group server operating systems with client PCs (recitals 383 to 386). Having, moreover, established that the existence of supply-side substitutable products was limited for work group server operating systems (recitals 388 to 400), the Commission concluded that those operating systems form a distinct product market.

12
The third market identified in the Decision is the streaming media players market (recitals 402 to 425). A media player is a software product capable of reading sound and image content in digital format, i.e. of decoding the corresponding data and translating them into instructions for hardware (loudspeakers, screen). Streaming media players are capable of reading content ‘streamed’ over the Internet.

13
In the Decision, the Commission found, first, that a streaming media player is a product distinct from an operating system (recitals 404 to 406), second, that such products are under no competitive pressure from non-streaming players (recitals 407 to 410), third, that only media players with similar functionalities exert competitive constraints on Windows Media Player (recitals 411 to 415), and, fourth, essentially, that the presence of supply-side substitutable products is limited (recitals 416 to 424). The Commission concluded from those factors that streaming media players constitute a distinct product market.

14
As regards the geographic dimension of the three product markets previously identified, the Commission found that the relevant geographic market was world-wide (recital 427).

B – Microsoft’s dominant position on the client PC operating system market and on the work group server operating system market

15
First, on the client PC operating system market, the Commission found that Microsoft has, at least since 1996, held a dominant position by virtue, inter alia, of the fact that it holds market shares in excess of 90% (recitals 430 to 435), and of the very significant barriers to entry attributable to indirect network effects (see, in particular, recitals 448 to 452). The Commission states in the Decision that those indirect network effects are attributable to two factors: (i) the fact that end consumers appreciate platforms on which they can use a large number of applications and (ii) the fact that software designers develop applications for the PC operating systems that are most popular with consumers.

16
Second, on the work group server operating system market, the Commission found that, at a conservative estimate, Microsoft’s share of that market is at least 60% (recitals 473 to 499).

17
The Commission also evaluated the position of Microsoft’s three main competitors on that market. First, it found that Novell, with its NetWare software, held a market share of between 10% and 15%. Second, Linux products accounted for a market share of between 5% and 15%. Linux is a ‘free’ operating system distributed under a GNU General Public Licence (‘GNU GPL’). According to recital 87 to the Decision, Linux provides a limited set of core tasks of an operating system but may be combined with other software to form a ‘Linux operating system’. Linux is present on the work group server operating system market in association with Samba software, which is also distributed under a ‘GNU GPL’ licence (recitals 294, 506 and 598). Third, UNIX products, which comprise several operating systems sharing certain common features (recital 42), account for a market share in the order of 5% to 15%.

18
The Commission then found that the work group server operating system market is characterised by the existence of numerous barriers to entry (recitals 515 to 525) and by particular links to the client PC operating system market (recitals 526 to 540). The Commission concluded that Microsoft holds a dominant position on the work group server operating system market.

II – Types of abusive conduct identified in the Decision

A – Refusal identified in the Decision

19
The first type of abusive conduct by Microsoft, described at recitals 546 to 791 to the Decision, consists in Microsoft’s refusal to provide its competitors with ‘interoperability information’ and to allow its use for the purpose of developing and distributing products competing with Microsoft’s own products on the work group server operating system market from October 1998 until the date of the Decision (Article 2(a) of the Decision). For the purpose of the Decision, ‘interoperability information’ means ‘the complete and accurate specifications for all the Protocols implemented in Windows Work Group Server Operating Systems and … used by Windows Work Group Servers to deliver file and print services and group and user administration services, including the Windows Domain Controller services, Active Directory services and Group Policy services, to Windows Work Group Networks’ (Article 1(1) of the Decision). ‘Protocols’ are defined as ‘a set of rules of interconnection and interaction between various instances of Windows Work Group Server Operating Systems and Windows Client PC Operating Systems running on different computers in a Windows Work Group Network’ (Article 1(2) of the Decision).

20
For the purpose of identifying such conduct, the Decision emphasises in particular that the refusal in issue does not relate to elements of Microsoft’s source code but solely to specifications for the protocols in question, a specification being a description of what is expected from the software in question, in contrast to ‘implementations’ (also referred to, for purposes of the present order, as ‘realisations’), constituted by the running of the code on the computer (recitals 24 and 569). The Commission also found that Microsoft’s conduct was part of a general pattern of conduct (recitals 573 to 577), that it involved a disruption from previous levels of supply (recitals 578 to 584), that it created a risk that competition might be eliminated (recitals 585 to 692), and that it had a negative effect on technical development, to the prejudice of consumers (recitals 693 to 708). The Commission also rejected Microsoft’s arguments that there was objective justification for its refusal (recitals 709 to 778).

B – Tying identified in the Decision

21
The Commission identified a second type of abusive conduct on Microsoft’s part, which is described at recitals 792 to 989 to the Decision. According to the Commission, that conduct consisted in the fact that Microsoft made the availability of the Windows Client PC operating system conditional on the simultaneous acquisition of Windows Media Player from May 1999 until the date of the Decision (Article 2(b) of the Decision).

22
In that regard, the Commission found that Microsoft’s conduct satisfied the conditions for a finding that there had been abusive tying for the purposes of Article 82 EC (recitals 794 to 954). First, according to the Decision, Microsoft has a dominant position on the market for client PC operating systems (recital 799). Second, streaming media players and client PC operating systems are regarded in the Decision as being two separate products (recitals 800 to 825). Third, Microsoft does not make it possible for consumers to buy Windows without Windows Media Player (recitals 826 to 834). Fourth, the tying which the Commission had identified affects competition in the market for media players (recitals 835 to 954).

23
In ascertaining whether that fourth condition was satisfied, the Commission pointed out that in classical tying cases the Commission and the Community judicature ‘considered the foreclosure effect for competing vendors to be demonstrated by the bundling of a separate product with the dominant product’ (recital 841). The Commission, however, considered in the Decision that, as users to a certain extent obtained media players in competition with Windows Media Player through the Internet, sometimes free of charge, there were in the present case good reasons not to assume without further analysis that tying Windows Media Player constituted conduct which by its very nature was liable to foreclose competition (recital 841).

24
In the context of that further analysis, the Commission found, first, that the tying in question afforded Windows Media Player ubiquity on client PCs world-wide which could not be affected by alternative distribution channels (recitals 843 to 877), second, that that ubiquity gave content providers an incentive to distribute their content in Windows Media formats and software developers an incentive to develop their products in such a way as to rely on certain functionalities of Windows Media Player (recitals 879 to 896), third, that that ubiquity affected certain related markets (recitals 897 to 899) and, finally, fourth, that the available market studies invariably pointed to a tendency in favour of the use of Windows Media Player and Windows Media formats to the detriment of its main competitors (recitals 900 to 944). From those various considerations, the Commission concluded that there was a reasonable likelihood that the tying in question would lead to a lessening of competition so that the maintenance of an effective competition structure would no longer be ensured in the foreseeable future (recital 984).

25
Finally, the Commission rejected Microsoft’s arguments, first, that the tying in question resulted in increased efficiencies such as to offset the anti-competitive effects identified by the Commission (recitals 955 to 970) and, second, that it did not provide incentives to restrict competition (recitals 971 to 977).

III – The remedies and fine imposed on Microsoft

26
The two abuses which the Commission identified in the Decision were penalised by the imposition of a fine amounting to EUR 497 196 304 (Article 3 of the Decision).

27
Moreover, Microsoft was required, under Article 4 of the Decision, to bring to an end the abuses established in Article 2 in accordance with Articles 5 and 6 of the Decision. Microsoft is also required to refrain from repeating any act or conduct described in Article 2 and from any act or conduct having the same or equivalent object or effect.

28
By way of remedy for the abusive refusal identified in the Decision, Article 5 of the Decision orders Microsoft to act as follows:

‘(a) Microsoft … shall, within 120 days of the date of notification of this Decision, make the interoperability information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the interoperability information by such undertakings for the purpose of developing and distributing work group server operating system products;

(b)    Microsoft … shall ensure that the interoperability information made available is kept updated on an ongoing basis and in a timely manner;

(c)    Microsoft … shall, within 120 days of the date of notification of this Decision, set up an evaluation mechanism that will give interested undertakings a workable possibility of informing themselves about the scope and terms of use of the interoperability information; as regards this evaluation mechanism, Microsoft … may impose reasonable and non-discriminatory conditions to ensure that access to the interoperability information is granted for evaluation purposes only;

…’

29
The 120-day period referred to in Article 5 of the Decision expired on 27 July 2004.

30
By way of remedy for the abusive tying identified in the Decision, Article 6 of the Decision orders as follows:

‘(a)  Microsoft … shall, within 90 days of the date of notification of this Decision, offer a full-functioning version of the Windows Client PC operating system which does not incorporate Windows Media Player; Microsoft … retains the right to offer a bundle of the Windows Client PC operating system and Windows Media Player;

…’.

31
The 90-day period referred to in Article 6 of the Decision expired on 28 June 2004.


Proceedings for breach of United States antitrust law

32
Concurrently with the investigation conducted by the Commission, Microsoft was the subject of an investigation for breach of United States antitrust legislation.

33
In 1998, the United States of America and 20 Federal States brought proceedings against Microsoft under the Sherman Act. Their complaints related to the measures taken by Microsoft against Netscape’s Internet browser ‘Netscape Navigator’ and Sun Microsystems’ Java technologies. The 20 Federal States in question also brought actions against Microsoft for breach of their own antitrust laws.

34
After the United States Court of Appeals for the District of Columbia Circuit (‘the Court of Appeals’), to which Microsoft had appealed against the judgment delivered on 3 April 2000 by the United States District Court for the District of Columbia (‘the District Court’), delivered its judgment on 28 June 2001, Microsoft reached a settlement in November 2001 with the United States Department of Justice and the Attorneys General of nine States (‘the United States Settlement’), under which Microsoft entered into two types of commitment.

35
First, Microsoft agreed to establish document specifications for the communications protocols used by Windows server operating systems in order to ‘interoperate’, i.e. render those systems compatible, with Windows Client PC operating systems, and to license those specifications to third parties on defined terms.

36
Second, the United States Settlement provided that Microsoft was to allow original equipment manufacturers (‘OEMs’) and end consumers to enable or remove access to its middleware products. The Windows Media Player software is one of the products belonging to that category, as defined in the United States Settlement. Those provisions are designed to ensure that middleware suppliers will be able to develop and distribute products which function correctly with Windows.

37
Those terms were approved on 1 November 2002 by the District Court, which also rejected the remedy proposals made by the nine States which had not accepted the United States Settlement.

38
Upon appeal by the State of Massachusetts, the Court of Appeals on 30 June 2004 upheld the District Court’s decision.

39
In order to give effect to the United States Settlement, the Microsoft Communications Protocol Program (‘the MCPP’) was put in place in August 2002. According to the documents produced before the Court of First Instance, 17 licensees benefited from the MCPP between August 2002 and July 2004.


Procedure

40
By application lodged at the Registry of the Court of First Instance on 7 June 2004, Microsoft brought an action under the fourth paragraph of Article 230 EC for annulment of the Decision or, in the alternative, annulment of or a substantial reduction in the fine.

41
By separate document lodged at the Court Registry on 25 June 2004, Microsoft also applied under Article 242 EC for suspension of operation of Articles 4, 5(a) to (c) and 6(a) of the Decision. By that document Microsoft also sought, on the basis of Article 105(2) of the Court’s Rules of Procedure, suspension of operation of those provisions pending a decision on the application for interim relief.

42
On the same date, the President of the Court of First Instance, in his capacity as judge dealing with the application for interim relief, requested the Commission to state whether it intended to enforce the Decision before an order had been made on the application for interim relief.

43
By letter received at the Court Registry on 25 June 2004, the Commission informed the President of its decision not to enforce Articles 5(a) to (c) and 6(a) of the Decision while the application for interim relief was pending.

44
By application lodged at the Court Registry on 25 June 2004, Novell Inc. (‘Novell’), established in Waltham, Massachusetts (United States of America), represented by C. Thomas, M. Levitt and V. Harris, Solicitors, and A. Müller-Rappard, lawyer, requested leave to intervene in support of the form of order sought by the Commission in the interim relief proceedings.

45
By application lodged at the Court Registry on 30 June 2004, RealNetworks Inc. (‘RealNetworks’) requested leave to intervene in support of the form of order sought by the Commission in the interim relief proceedings.

46
By application lodged at the Court Registry on 30 June 2004, Computer & Communications Industry Association (‘CCIA’), established in Washington, DC (United States of America), represented by J. Flynn QC, D. Paemen and N. Dodoo, lawyers, requested leave to intervene in support of the form of order sought by the Commission in the interim relief proceedings.

47
By application lodged at the Court Registry on 1 July 2004, Software & Information Industry Association (‘SIIA’) requested leave to intervene in support of the form of order sought by the Commission in the interim relief proceedings.

48
By application lodged at the Court Registry on 1 July 2004, The Computing Technology Industry Association Inc. (‘CompTIA’) requested leave to intervene in support of the form of order sought by Microsoft in the interim relief proceedings.

49
By application lodged at the Court Registry on 2 July 2004, The Association for Competitive Technology (‘ACT’) requested leave to intervene in support of the form of order sought by Microsoft in the interim relief proceedings.

50
By application lodged at the Court Registry on 5 July 2004, Digimpro Ltd, established in London (United Kingdom), TeamSystem SpA, Mamut ASA and CODA Group Holdings Ltd, established in Chippenham, Wiltshire (United Kingdom), requested leave to intervene in support of the form of order sought by Microsoft in the interim relief proceedings.

51
By application lodged at the Court Registry on 5 July 2004, DMDsecure.com BV, MPS Broadband AB, Pace Micro Technology plc, Quantel Ltd and Tandberg Television Ltd (hereinafter referred to collectively as ‘DMDsecure.com and Others’) requested leave to intervene in support of the form of order sought by Microsoft in the interim relief proceedings.

52
By application lodged at the Court Registry on 8 July 2004, IDE Nätverkskonsulterna AB, established in Stockholm (Sweden), Exor AB, T. Rogerson, residing in Harpenden, Hertfordshire (United Kingdom), P. Setka, residing in Sobeslav (Czech Republic), D. Tomicic, residing in Nuremberg (Germany), M. Valasek, residing in Karlovy Vary (Czech Republic), R. Rialdi, residing in Genoa (Italy), and B. Nati, residing in Paris (France), requested leave to intervene in support of the form of order sought by Microsoft in the interim relief proceedings.

53
By application lodged on 13 July 2004, Free Software Foundation Europe (‘FSF-Europe’) requested leave to intervene in support of the form of order sought by the Commission in the interim relief proceedings.

54
In accordance with Article 116(1) of the Rules of Procedure, those applications for leave to intervene were served on the applicant and the defendant, which, depending on the case, either submitted their observations within the prescribed periods or did not submit any observations. By letters of 6 and 8 July 2004, Microsoft requested confidential treatment vis-à-vis such parties as should be granted leave to intervene for the data contained in the Decision which the Commission had accepted would not be made public in the version available on its Internet site.

55
The Commission submitted its written observations on the application for interim relief on 21 July 2004. Those observations were notified to Microsoft on the same date.

56
By order of 26 July 2004, the President of the Court of First Instance granted leave to intervene to CompTIA, ACT, TeamSystem SpA, Mamut ASA, DMDsecure.com and Others, Exor AB, Novell, RealNetworks, CCIA and SIIA and dismissed the applications for leave to intervene submitted by Digimpro Ltd, CODA Group Holdings Ltd, IDE Nätverkskonsulterna AB, T. Rogerson, P. Setka, D. Tomicic, M. Valasek, R. Rialdi and B. Nati. The President of the Court of First Instance also ordered that the non-confidential version of the procedural documents be forwarded to the interveners and reserved his decision on the merits of the request for confidential treatment.

57
On 27 July 2004, the President of the Court of First Instance, in his capacity as judge dealing with the application for interim relief, organised an informal meeting which, in addition to Microsoft and the Commission, the parties granted leave to intervene by the order of the President of the Court of First Instance of 26 July 2004 and also FSF-Europe were invited to attend. At that meeting the President provisionally granted leave to FSF-Europe to intervene in the interim relief proceedings in support of the form of order sought by the Commission and set out for the parties the timetable for the various procedural stages in the present interim relief proceedings.

58
By order of 6 September 2004, FSF-Europe was granted leave to intervene in support of the form of order sought by the Commission.

59
Each of the parties granted leave to intervene lodged its observations within the periods prescribed.

60
In accordance with what had been decided at the informal meeting on 27 July 2004, Microsoft replied on 19 August 2004 to the Commission’s observations of 21 July 2004.

61
By application lodged on 31 August 2004, Audiobanner.com, trading as VideoBanner (‘Videobanner’), established in Los Angeles, California (United States of America), represented by L. Alvisar Ceballos, lawyer, requested leave to intervene in the interim relief proceedings in support of the form of order sought by the Commission. As neither of the two main parties objected to that application for leave to intervene, VideoBanner was provisionally granted leave to intervene and was requested to submit its observations directly at the hearing.

62
In reply to Microsoft’s observations of 19 August 2004, the Commission lodged fresh observations on 13 September 2004.

63
The applicant and the defendant also lodged their written observations on the statements in intervention on 13 September 2004.

64
By way of measures of organisation of procedure, the President of the Court of First Instance, in his capacity as judge dealing with the application for interim relief, put written questions to Microsoft, the Commission and a number of the interveners. The replies given to those questions within the periods prescribed were notified to all of the parties.

65
All of the parties, including VideoBanner, presented oral argument at a hearing held on 30 September 2004 and 1 October 2004.

66
By letter of 8 October 2004, RealNetworks lodged at the Registry a number of additional details which the President had requested it to produce at the hearing. The other parties received notification of that letter and were invited to submit their observations on it.

67
By letter of 27 October 2004, Microsoft submitted observations on RealNetwork’s letter of 8 October 2004. None of the other parties submitted observations.

68
By letters of 10 November and 19 November 2004 respectively, CCIA and Novell informed the Court that they were withdrawing their intervention in the present case. The Commission, Microsoft and the interveners submitted their observations on those withdrawals within the period prescribed.

69
Following the withdrawals of CCIA and Novell, an informal meeting was held on 25 November 2004 in the presence of all the parties in order to address certain procedural consequences of those withdrawals. The minutes of that meeting were forwarded to all the parties on 26 November 2004.


Law

70
Under the combined provisions of Articles 242 EC and 225(1) EC, the Court of First Instance may, if it considers that the circumstances so require, order that application of a contested act be suspended.

71
Article 104(2) of the Rules of Procedure provides that an application for interim relief must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those conditions are cumulative, so that an application for interim relief must be dismissed if any one of them is absent (order of the President of the Court of Justice in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30). Where appropriate, the judge hearing an application for interim relief must also weigh up the interests involved (order of the President of the Court of Justice in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73).

72
In the context of that overall examination, the judge dealing with the application must exercise the broad discretion which he enjoys when determining the manner in which those various conditions are to be examined in the light of the specific circumstances of each case (order of the President of the Court of Justice in Case C‑393/96 P(R) Antonissen v Council and Commission [1997] ECR I‑441, paragraph 28).

73
Article 107(1) of the Rules of Procedure states that ‘[t]he decision on the application shall take the form of a reasoned order’. It has, however, been held that a judge dealing with an application for interim relief cannot be required to reply explicitly to all the points of fact and law raised in the course of the interim proceedings. In particular, it is sufficient that the reasons given by the judge dealing with the application at first instance validly justify his order in the light of the circumstances of the case and enable the Court of Justice to exercise its powers of review (order in SCK and FNK v Commission, cited at paragraph 71 above, paragraph 52, and order of the President of the Court of Justice in Case C‑159/98 P(R) Netherlands Antilles v Council [1998] ECR I‑4147, paragraph 70).

74
Because the abuses of a dominant position which Microsoft is alleged to have committed are mutually distinct, as may be seen, moreover, from both the structure of the Decision and the way in which Microsoft has marshalled its arguments, the President considers it appropriate to examine separately the arguments developed in support of the application for suspension of operation of Article 5(a) to (c) of the Decision, read with Article 4 of the Decision (the section dealing with the interoperability information issue), and the arguments developed in support of the application for suspension of operation of Article 6(a) of the Decision, also read with Article 4 (the section dealing with the issue of the tying of the Windows operating system and the Windows Media Player software). Before doing so, however, the President will consider the request for confidential treatment, VideoBanner’s application for leave to intervene, the effects of the withdrawal of CCIA and Novell, and also whether the applicant complied with certain procedural requirements relating to the written submissions.

I – The request for confidential treatment

75
At the stage of the interim relief proceedings, it is appropriate to grant confidential treatment, vis-à-vis the parties granted leave to intervene, for the data contained in the Decision which the Commission has accepted should not be made public in the version available on its Internet site, since such information is prima facie liable to be regarded as being secret or confidential within the terms of Article 116(2) of the Rules of Procedure.

II – VideoBanner’s application for leave to intervene

76
As noted at paragraph 61 above, VideoBanner lodged an application for leave to intervene in the interim-relief proceedings in support of the form of order sought by the Commission.

77
As that application was made in accordance with Article 115(2) of the Rules of Procedure and the main parties have not raised any objections, it must be granted, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, which is applicable to the Court of First Instance by virtue of the first paragraph of Article 53 thereof.

III – The effects of the withdrawal of certain interveners

78
As CCIA and Novell informed the Court that they were withdrawing their intervention in support of the form of order sought by the Commission in the interim relief proceedings, the President of the Court, in his capacity as judge dealing with the application, organised an informal meeting in the presence of all the parties to examine some procedural consequences of their withdrawal.

79
As is clear from the minutes of that meeting, the parties agreed, first, that the documents lodged by CCIA and Novell in the interim relief proceedings, including all annexes to their written submissions, and the arguments presented at the hearing should remain part of the file for purposes of the present interim relief proceedings; second, that all the parties should be able to rely on those matters for the purposes of their arguments and the President should be able to rely on them for his appraisal; and, third, that all the parties had had an opportunity to present argument in respect of all material placed on the file in the present case.

80
RealNetworks, moreover, submitted in its observations on CCIA’s withdrawal that CCIA did not have the power to withdraw in the present case.

81
The President takes the view in this regard that it is not for him to examine RealNetworks’ objection in so far as, first, he has no jurisdiction to adjudicate on whether the decisions of the Board of CCIA were taken in accordance with the provisions of its articles and, second, the application to withdraw was submitted by CCIA in accordance with the requirements laid down in the Rules of Procedure of the Court of First Instance.

IV – Compliance with the procedural requirements governing the written documentation

82
The Commission and a number of the parties intervening in support of the form of order which it is seeking have claimed, first, that certain references to documents annexed to Microsoft’s main application are inadmissible; second, that certain documents produced by Microsoft in the course of the present proceedings are inadmissible; third, that there is no evidence to support a number of assertions; and, fourth, that the applicant has failed to comply with other procedural requirements.

A – The references to the main application

83
In its observations of 21 July 2004, the Commission listed the paragraphs of the application for interim relief which contain references to the main application and to the documents annexed to that application but not annexed to the application for interim relief (Annexes A.9, A.9.1, A.9.2., A.11, A.12.1, A.17, A.18, A.19, A.20, A.21, A.22 and A.24). The Commission concludes that Microsoft cannot effectively rely on those documents.

84
In its observations of 13 September 2004, the Commission added that the new references to the main application which Microsoft made in its observations of 19 August 2004, in particular with regard to the agreement of the World Trade Organisation (WTO) on the trade-related aspects of intellectual property rights (‘the TRIPS Agreement’) must, like the preceding ones, be excluded. To attach the corresponding sections of the main application as an annex (Annex T.9) to the observations does not allow the conclusion to be drawn that the application for interim relief is self-sufficient.

85
It must be borne in mind in this regard that, at the informal meeting held on 27 July 2004 (see paragraph 57 above), the President drew Microsoft’s attention to the large number of references to the main application contained in the application for interim relief and questioned the applicant on that point. As recorded in the minutes of that meeting: ‘[Microsoft] confirmed that its application for interim measures should be seen as self-sufficient and that the multiple references made in its application for interim measures to annexes to the application in the main case could be ignored for the purposes of the interim measures proceedings’.

86
That position is in accordance with Part VII(1) of the Practice Directions (OJ 2002 L 87, p. 48), which provides that an application for interim relief ‘must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings’.

87
It follows that the merits of Microsoft’s application for interim relief can be assessed only by reference to the elements of fact and law as they emerge from the application for interim relief itself and from the documents annexed to that application and intended to illustrate its content (see, to that effect, the order of the President of the Court of First Instance in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 52). While it cannot be concluded that every assertion based on a document that is not annexed to the application for interim relief must necessarily be excluded from the proceedings, the fact remains that evidence to support such an assertion cannot be regarded as having been adduced if the assertion in question is challenged by the other party to the proceedings or by a party intervening in support of that other party.

88
So far as the reference to Annex T.9 is concerned, it must be borne in mind that, while an application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other documents, even if they are annexed to the application for interim relief, cannot make up for the absence of essential elements in that application (order in Aden and Others v Council and Commission, paragraph 87 above, paragraph 52). It is necessary to point out in this regard that Part VII(2) of the Practice Directions, which requires that ‘the pleas of fact and law on which the main action is based (establishing a prima facie case on the merits in that action)’ be stated ‘with the utmost concision’, cannot, without circumventing that rule, be construed as permitting the general reference to an annexed document setting out the details of the argument.

89
Without prejudice to the documents placed subsequently on the case-file and the oral submissions at the hearing before the President, the decision in the present proceedings will be taken without reference to either the annexes to the main application or Annex T.9.

B – The production of documents in the course of the proceedings

90
In its observations of 13 September 2004, the Commission maintains, first, that the arguments which Microsoft had put forward in its observations of 19 August 2004, in particular those relating to intellectual property rights set out in detail in two separate annexes (Annex T.3, entitled ‘Prescott, Opinion’, and Annex T.6, entitled ‘Galloux, Opinion’), went beyond those set out in the main application. Nor was any explanation provided as to why Annex T.3, a document dated 3 June 2004, was not produced as an annex when the application for interim relief was made.

91
The Commission then states that Microsoft annexed to its observations of 19 August 2004 a document which it had annexed to the main application (Annex A.21, which became Annex T.5, Knauer, ‘Aspects of Patent Law of the [Decision]’, and a document the content of which appears to be similar to that of an annex to the main application (Annex T.8, Evans, Nichols and Padilla ‘Economic Evidence on the Foreclosure Issues Raised by the Commission’s Refusal to Supply and Tying Claims’, similar to Annex A.19).

92
In their replies to the written questions put by the Court before their withdrawal, Novell and CCIA stated that certain documents are inadmissible inasmuch as they ought to have been produced along with the application for interim relief, whereas they were produced only subsequently (Annexes T.3, T.5, T.8 and U.2, Campbell-Kelly, ‘Commentary on Innovation in Active Directory’).

93
The President finds that documents T.3, T.5, T.6 and T.8 were annexed to Microsoft’s observations of 19 August 2004 and that they are intended to support the content of those observations. Microsoft cannot therefore, in those circumstances, be criticised for having replied in detail to the arguments which the Commission had put forward in its observations of 21 July 2004; little significance attaches in this regard to the fact that the document annexed bears a date prior to that on which the application for interim relief was lodged or that it is identical or comparable to a document annexed to the main application. Likewise, for the same reasons, Microsoft could validly use Annex U.2 as a basis for its observations on the statements in intervention.

C – The lack of evidence

94
The Commission points out that Annex T.5 and Annex T.8 are based on information to which it has not had access (paragraph 4 of Annex T.5 refers to information received from Microsoft, without further specification; in the case of Annex T.8, the reports referred to in paragraph 6 thereof (prepared by Merrill Lynch and Forrester and dealing with server market data) are not attached, as is the case with regard to those referred to in footnote 35 (surveys conducted by Microsoft), footnotes 42 and 43 (‘Digital Media Tracker Survey’), footnote 48 (‘Analysis of Media Players Installed on PCs’) and footnote 50 (‘NERA submission’)).

95
It is sufficient in this regard to point out that it is for the judge dealing with the application for interim relief to determine, as appropriate, whether the assertions based on the above reports and information are lacking in probative value.

D – The failure to comply with certain other procedural requirements

96
The Commission and CCIA, prior to its withdrawal, submit that Microsoft refers in its application for interim relief to Annex R.6 (Carboni, ‘Trade Marks Opinion’), without explaining the relevance of the document in question, and that no account should therefore be taken of that annex.

97
As already pointed out at paragraph 88 above, the general reference to other documents, even if they are annexed to the application for interim relief, cannot make up for the absence of the essential elements in that application. In the present case, Annex R.6, to which the application for interim relief refers, is used to support an argument concerning the risk of harm to Microsoft’s trade marks, which reads as follows: ‘[t]he immediate implementation of Article 6(a) of the Decision would also cause serious injury to the valuable Microsoft and Windows trademarks because Microsoft would be required to sell a downgraded product inconsistent with its basic design concept.’ In so far as it is sufficiently clear from this phrase that Annex R.6 is intended to illustrate the risk identified, the President considers that that annex should not be excluded from the proceedings.

V – Substance

A – The interoperability information issue

1.     Arguments of the parties

a)     Arguments of Microsoft and the parties granted leave to intervene in support of the form of order which it seeks

A prima facie case

98
Microsoft states that there is a serious dispute between it and the Commission regarding the compulsory licensing of its communications protocols, with the consequence that the requirement that it demonstrate a prima facie case as to the illegality of Article 5(a) to (c) of the Decision is satisfied.

99
Microsoft maintains that the four criteria which must be satisfied before an undertaking can be required to license its products, as defined by the Court of Justice in Case 238/87 Volvo [1988] ECR 6211, Joined Cases C-241/91 P and C‑242/91 P RTE and ITP v Commission [1995] ECR I-743 (‘Magill’), C-7/97 Bronner [1998] ECR I-7791 and judgment of 29 April 2004 in Case C-418/01 IMS Health, not yet reported, are not satisfied in the present case.

100
First, the intellectual property that the Decision would require Microsoft to deliver to its competitors is not indispensable for the purposes of carrying on a business as a supplier of work group server operating systems.

101
First of all, Microsoft claims that there are five ways of achieving interoperability between operating systems supplied by different vendors, namely: (i) by using standard communications protocols such as TCP/IP (Transmission Control Protocol/Internet Protocol) and HTTP (HyperText Transfer Protocol); (ii) by adding software code to a Windows Client PC or server operating system to permit it to communicate with a non-Microsoft server operating system by using communications protocols specific to that server operating system; (iii) by adding a software code to a non-Microsoft server operating system to permit it to communicate with a Windows Client PC or server operating system using communications protocols specific to Windows operating systems; (iv) by adding a block of software code to all of the client PC and server operating systems in a network in order to achieve interoperability by means of communications between those blocks of software code; and (v) by using a Windows server operating system as a ‘bridge’ between the Windows Client PC operating system and the non-Windows server operating system.

102
Next, Microsoft refers to the absence of customer complaints about the existing degree of interoperability.

103
Last, Microsoft refers to the continued presence of several competitors carrying on that business.

104
Second, Microsoft’s refusal to make its intellectual property available to its competitors has not prevented the emergence of any new product for which there is unsatisfied consumer demand. No evidence of lack of satisfaction has been adduced. Nor has it been established that Microsoft’s intellectual property will be used by its competitors to develop new products and not simply to replicate the functionality of existing Microsoft products.

105
Third, the fact that Microsoft has retained its technology for its own use has not had the effect of eliminating competition on a secondary market, since, as shown by the steady growth of Linux, there is substantial competition among vendors of work group server operating systems. Six years after Microsoft’s alleged refusal to supply its technology, the market is therefore competitive.

106
Fourth, the refusal to license its technology to vendors of non-Microsoft server operating systems is objectively justified. Unlike the information protected by the national legislation then at issue which the companies involved had refused to disclose in Magill and IMSHealth, paragraph 99 above, the information protected in the present case relates to secret and valuable technology. In the present case, in order to arrive at the conclusion that the refusal to communicate information protected by intellectual property rights was not objectively justified and therefore constituted an infringement of Article 82 EC, the Commission applied an imprecise test which represented a marked departure from those recognised in previous case-law. Thus, the Commission itself considered that such a refusal constitutes an infringement of Article 82 EC if, on balance, the possible negative impact of an order to supply on Microsoft’s incentives to innovate is outweighed by its positive impact on the level of innovation of the whole industry (recital 783). In addition to the fluid nature of that new test, it is not demonstrated, on the basis of evidence or analysis, that innovation in the sector would be spurred should Microsoft’s technology be delivered to its competitors. Microsoft maintains, on the contrary, that a compulsory licence would reduce competition between server operating system vendors.

107
Microsoft further claims that Sun Microsystems did not request it to provide the technology which the Commission now orders it to disclose. Moreover, as no licence for the purpose of developing software in the EEA was ever requested by Sun Microsystems, Microsoft maintains that it was under no duty to regard Sun Microsystems’ request as susceptible of leading it to adopt a course of conduct that might fall within the scope of Article 82 EC.

108
Last, by requiring Microsoft to license protected information, the Commission fails to take proper account of the obligations imposed on the Communities by the TRIPS Agreement (see paragraph 84 above).

109
In its observations of 19 August 2004, Microsoft submits that the Commission cannot validly maintain that the Decision does not impose new conduct on it but only has the effect of requiring it to revert to a business policy that it had initially pursued. Microsoft observes, first of all, that the Commission does not suggest that the information referred to in Article 5 of the Decision was supplied in the past. If the Commission was thus referring to the networking technology information licensed to AT&T in 1994 to permit the creation of a product called ‘Advanced Server for UNIX’ (‘AS/U’), then the supply of that information has not been discontinued. The product called ‘PC Net Link’ developed by Sun Microsystems, to which AT&T licensed AS/U, is still available on the market today. Sun Microsystems still advertises PC Net Link as providing ‘native Windows NT network services’ – including file and print services and user and group administration services – on the Solaris server operating system. Sun Microsystems also claims that PC Net Link works well with Microsoft’s latest Windows Client PC operating systems, including Windows 2000 Professional and Windows XP.

110
Nor can Microsoft be required to license its communications protocols in the future because it decided to license networking technology to AT&T in 1994. It was a term of the contract between Microsoft and AT&T, moreover, that their business relationship would not be extended to new technologies.

111
Last, Microsoft states that competing vendors of server operating systems are not dependent on the interoperability information whose supply Microsoft is alleged to have interrupted. Novell has never used AS/U and has never expressed the slightest interest in doing so. Novell’s NetWare supplies file and print services and user and group administration services to Windows operating systems using Novell’s own suite of communications protocols. Linux vendors have no use for AS/U either. Their server operating systems supply file and print services and user and group administration services to Windows operating systems using the Samba open-source software product, which was developed by reverse engineering Microsoft’s communications protocols.

Urgency

112
Microsoft contends that the immediate enforcement of Article 5(a) to (c) of the Decision would give rise to three types of serious and irreparable harm.

–     Infringement of intellectual property rights

113
The Decision has the effect of requiring Microsoft to license valuable information protected by intellectual property rights. The resulting infringement of intellectual property rights constitutes serious and irreparable harm.

(i)
Valuable information

114
Microsoft states that the communications protocols constitute a technology owned by Microsoft and used by Windows Client PC and server operating systems to exchange information with other copies of those operating systems, and that they have significant commercial value (report by S. Madnick and B. Meyer, ‘Harm caused by forcing Microsoft to disclose all communications protocols used to provide “work group” services’, in annex R.2 (‘the Madnick & Meyer report’)). Its communications protocols are the fruit of many years of very expensive research and development. Significant efforts were expended in designing communications protocols that provide useful functionality and enhance the speed, reliability, security and efficiency of interactions between Windows operating systems.

115
The specifications for the communications protocols, which are detailed descriptions of the design and operation of the communications protocols, would allow a competitor in possession of them to use Microsoft’s communications protocols in its own server operating system.

116
In its observations of 19 August 2004, Microsoft claims that the compulsory licensing of specifications for communications protocols that enable multiple Windows server operating systems to function jointly in providing work group services would have the effect of disclosing a great deal of information about the internal design of Windows operating systems. As the Madnick & Meyer report shows, licensing the communications protocols that enable interaction between a number of Windows server operating systems would reveal extensive information about how the directory in those operating systems, called Active Directory, works.

(ii)
Information protected by intellectual property rights

117
Microsoft’s communications protocols and the specifications describing them are protected by intellectual property rights. In answer to an argument put forward by the Commission in its observations of 21 July 2004, Microsoft states, first, that a distinction must be drawn between protocol design, protocol specifications and protocol implementation and, second, that intellectual property protection is not limited to any one of those three categories.

Copyright protection

118
Communications protocols are protected by copyright under the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, as last amended on 28 September 1979, and by Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (OJ 1991 L 122, p. 42), by virtue of the preamble and Article 1(1). The specifications for those protocols are preparatory design material, which is also protected by copyright (opinion of Mr Prescott, annex T.3, referred to at paragraph 90 above).

119
Consequently, Microsoft, like any copyright owner, has the exclusive right to authorise publication of its protected works or to make them available to the public in any other form. The copyright laws of various Member States expressly authorise owners of protected works to determine whether those works will be published or disclosed in any form. The Decision deprives Microsoft of the right to decide in what form, to whom, when and on what conditions it wishes to make the specifications for its communications protocols available, if at all. The Commission cannot therefore recognise that the specifications for Microsoft’s communications protocols are protected by copyright and at the same time maintain that the requirement imposed on Microsoft by the Decision to license those specifications does not infringe the very substance of that right.

120
The copyright owner also has the exclusive right to authorise the creation of derivative works, under both Article 12 of the Berne Convention and Article 4 of Directive 91/250. That exclusive right to authorise the creation of derivative works is infringed, since the implementation of the specifications for Microsoft’s communications protocols by its competitors would almost certainly be an adaptation, or a translation, of those specifications which would fall within the ambit of copyright and could therefore not be regarded as a work developed independently. Furthermore, even on the assumption that the licensees were capable of implementing certain specifications without infringing Microsoft’s copyright, the Decision does not require them to do so, since it requires Microsoft to ‘allow the use’ of the specifications for its communications protocols without setting a limit to the way in which the licensees will develop their creations. There is therefore no reason to believe that the licensees will confine themselves to developing applications that would not be unlawful, even on the assumption that it were possible to do so.

121
Last, Microsoft claims that, in the context of the United States Settlement, all the parties agreed that the specifications for its client-to-server communications protocols were protected by copyright.

Patent protection

122
In its application for interim measures, Microsoft states that certain of the communications protocols that the Commission requires it to provide are covered by patents or patent applications and that it intends to file, before June 2005, a large number of patent applications covering various aspects of the Windows Client PC and server operating systems covering the communications protocols referred to in the Decision. The fact that the effects of the Decision are not limited as to time means that future patents would be covered by the compulsory licensing requirement contained in the Decision.

123
In its observations of 19 August 2004, Microsoft identifies three existing European patents and two pending European patent applications covering the communications protocols subject to compulsory licensing. According to the opinion of Mr Knauer, annex T.5, referred to at paragraph 91 above, a number of communications protocols used by Windows server operating systems to provide file and print services and user and group administration services are covered by patents, namely (i) the DFS (Distributed File System) protocol, covered by Patent EP 0 661 652 B1; (ii) the SMB Protocol, covered by Patent EP 0 438 571 B1; and (iii) the Distributed Component Object Model Remote protocol, covered by Patent EP 0 669 020 B1. The patent applications relate to the Constraint Delegation and Active Directory Sites protocols.

124
In that context, Microsoft states that the Commission does not exclude patented technology from the remedy and requires that Microsoft license all its intellectual property rights relating to communications protocols, including every patent. Its competitors would thus have no reason to attempt to develop applications which did not use the patented methods.

Protection of trade secrets

125
Microsoft maintains that the communications protocols are trade secrets which have not been disclosed to third parties, unless they have undertaken to be bound by a contractual confidentiality obligation.

126
In answer to the Commission’s observations of 21 July 2004 that, first, the legitimacy under competition law of a refusal to reveal a ‘secret’ whose existence is purely the consequence of a unilateral business decision should be dependent upon the interests at stake and, second, the damage caused to Microsoft by the requirement to reveal its trade secrets is less serious than the damage caused by the requirement that Microsoft allow reproduction of its copyrighted works or infringement of its patents, Microsoft contends that at the moment it can transfer its communications protocols to third parties in exchange for financial consideration and can bring proceedings against those who unlawfully use those protocols (opinions of Mr Prescott and Mr Galloux, annexes T.3 and T.6, referred to at paragraph 90 above) and that, consequently, compulsory licensing will undermine the value of those assets. Nor can it be inferred from the judgment in Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraphs 84 and 139, that the Court of First Instance accepted that secret information in the form of specifications is not protected in the same way as other intellectual property, since the Court was not called upon to determine whether the specifications for cartons were protected trade secrets.

The necessity for the information

127
In its observations of 21 July 2004, the Commission asserts that the specifications for Microsoft’s communications protocols constitute ‘information necessary to achieve interoperability’ within the meaning of Directive 91/250 and that, consequently, the compulsory licensing ordered by the Decision does not provide Microsoft’s competitors with anything which they could not obtain by decompiling Windows server operating systems in accordance with the derogation in Article 6 of that directive.

128
However, Microsoft contends that that assertion is incorrect, for a number of reasons.

129
First, Article 6(2) of Directive 91/250 offers only a limited exception to the exclusive rights of the owner of a protected software program as set out in Article 4 of that directive. In certain well-defined circumstances, a ‘legitimate user’ is permitted to ‘discover’ interfaces in a protected software program by ‘decompiling’ the machine-readable code that exposes those interfaces. Such ‘decompilation’ is permitted only if the interfaces are indispensable to support functionality in an independently-created software program and have not been made available by the owner of the program. In the present case, apart from the fact that Microsoft states that it has already disclosed the interfaces that third-party software programs need in order to call upon the functionality of Windows server operating systems, the specifications for its communications protocols are not necessary to support functionality in an independently-created work group server operating system. On the contrary, the Decision requires Microsoft to allow competitors to create products providing the same file and print services and user and group administration services as Windows server operating systems provide by developing their own implementations of Microsoft’s communications protocols. Thus, Microsoft is required to provide its competitors with valuable commercial information in circumstances in which they would have no right to decompile under Article 6(2) of Directive 91/250.

130
Second, Article 6 of Directive 91/250 allows information to be obtained by decompilation, but in paragraph 2 it places three strict limits on the use of that information, including a prohibition on using the information to create a program reproducing the decompiled program. However, the Decision contains no limit in that sense; on the contrary, it authorises licensees to develop applications which infringe Microsoft’s copyright in its specifications for its communications protocols.

131
Third, the specifications are more valuable than the information that Microsoft’s competitors could obtain through legitimate decompilation.

Serious and irreparable damage

132
Microsoft maintains, in the second place, that the disclosure of information protected by intellectual property rights would cause serious and irreparable harm.

133
By allowing Microsoft’s competitors to use the communications protocols in order to provide server operating systems capable of replacing those supplied by Microsoft, Article 5(a) of the Decision deprives Microsoft of the competitive advantages which it has acquired through research and development. Intellectual property rights imply the right to choose whether or not to use the protected property and the way in which to use it. It has already been held that compulsory licensing undermines the ‘fundamental rationale’ of intellectual property, which ‘affords the creator of inventive and original works the exclusive right to exploit such works’ (order of the President of the Court of First Instance of 26 October 2001 in Case T-184/01 R IMSHealth v Commission [2001] ECR II-3193, paragraph 125). For that reason, the Court of First Instance has recognised that to require an undertaking to license its intellectual property, even on a ‘purely temporary’ basis, risks causing ‘serious and irreparable damage’ even when the information concerned is already in the public domain (ibid., paragraph 127).

134
The irreversible nature of the delivery of intellectual property is particularly obvious in the case of trade secrets. In the present case, the intellectual property relates to Microsoft’s insights into the ways of accomplishing certain tasks that server operating systems need to perform, whether by themselves or in collaboration with client PC and server operating systems. Disclosure of those insights reveals knowledge that can never be erased from the memory of the recipients.

135
The compulsory licensing of copyrighted information also has irreversible effects on competition. By studying the specifications for copyrighted communications protocols, Microsoft’s competitors will be able to obtain detailed knowledge of the inner workings of its operating systems and to use that knowledge in their own products. It will be impossible to determine subsequently that that knowledge is not being used by Microsoft’s competitors.

136
The compulsory licensing of patents also causes irreparable harm. Admittedly, following annulment of the Decision, Microsoft would be able to bring proceedings against third parties in order to prevent them from using the patented technology, but it would be a particularly complicated and inefficient exercise to attempt to ascertain whether or not Microsoft’s technology was still being used, and products created in the meantime and incorporating Microsoft’s inventions would probably remain in distribution channels and in the hands of customers.

137
Although the Decision allows Microsoft to license its intellectual property on ‘reasonable and non-discriminatory terms’, which presumably implies payment of a royalty, the damage to its intellectual property rights would not be cured by the receipt of such a royalty (see, to that effect, the order in IMS Health v Commission, paragraph 133 above, paragraph 125).

–     Interference with Microsoft’s business freedom

138
Microsoft refers to the orders of the President of the Court of First Instance in Case T-41/96 R Bayer v Commission [1996] ECR II-381, paragraph 54, and IMS Health v Commission, paragraph 133 above (paragraph 130) and maintains that, as in the cases in which those orders were made, its ability to determine freely the crucial elements of its business policy would be compromised by the implementation of the Decision.

(iii)
Freedom to communicate information

139
In the present case, it is not Microsoft’s business policy to offer a general licence for its communications protocols. The licensing of its client-to-server protocols was agreed in the United States Settlement, but that settlement does not cover the licensing of its server-to-server communications protocols. By requiring Microsoft to deliver the specifications for its server-to-server communications protocols, most of which have never been drawn up, the Decision forces Microsoft to become a purveyor of technology to its competitors in the server operating system sector.

140
Microsoft then explains the differences between, on the one hand, the United States Settlement and the agreement with Sun Microsystems and, on the other hand, the Decision.

141
The United States Settlement provides for the licensing of client-to-server communications protocols for the sole purpose of ensuring interoperability with Windows client PC operating systems, unlike the Decision, which requires the licensing of the same protocols for use in work group server operating systems which provide file and print services and user and group administration services to any Windows Client PC or server operating system.

142
The settlement concluded with Sun Microsystems – the only complainant before the Commission – in April 2004 comprises a series of reciprocal agreements whereby the parties agreed to collaborate in product development and to conclude cross-licences, including licences covering the types of communications protocols concerned by the Decision. Microsoft emphasises that the cross-licences make provision for consideration in the form of access to Sun Microsystems’ intellectual property and provide Sun Microsystems with an incentive to respect Microsoft’s intellectual property in its licensed technology. The reciprocal nature of those agreements provides Microsoft with the consideration specifically lacking in the compulsory licensing ordered by the Decision.

(iv)
Freedom to develop products

143
Microsoft maintains that implementation of the Decision would deprive it of its capacity to develop its products. The compulsory licensing of its communications protocols would definitively compromise its freedom to decide how to develop its products. The future improvement of those protocols and, ultimately, Microsoft’s capacity to innovate would be affected, as the Madnick & Meyer report shows. Once third-party products begin to depend on the design features of a Windows server operating system rather than calling upon its functionality through published interfaces, Microsoft’s capacity to change those design features with the aim of improving the product will be reduced. The Commission’s assertions to the contrary in its observations of 21 July 2004 ignore commercial reality. It is already an engineering challenge for Microsoft, in the context of successive releases of new Windows server operating systems, to maintain backward compatibility with the thousands of published interfaces used by third-party software programs. The task of adding new functionalities and improving the performance, security and reliability of existing functionality would be made considerably more difficult if third-party software programs were calling upon Windows functionality using what were formerly confidential protocols (Madnick & Meyer reports, annexes R.2 and T.7).

(v)
The need to ‘harden’ the protocols

144
Private protocols are not designed to be used in unknown third-party software products. Consequently, the disclosure of a large number of private communications protocols might lead to malfunctions, crashes and security risks. Microsoft would then have to devote part of its resources to ‘hardening’ the protocols against inadvertent and malicious use, which often requires the addition of protective code or substantial additional testing before products using the communications protocols can be released. In that regard, the Decision irreversibly affects Microsoft’s freedom to develop its products in whatever way it deems appropriate.

145
In its observations of 19 August 2004, Microsoft further states that providing competitors with specifications for communications protocols that were never intended for any purpose other than communicating between Windows server operating systems would expose customers to technical vulnerabilities. It refers on that point to the Madnick & Meyer reports, annexes R.2 and T.7. Such protocols make numerous assumptions about the internal workings of the server operating systems that jointly provide work group services. Consequently, they do not have the protective mechanisms which they would have if they had been designed to communicate with third-party software products. While it would be possible for Microsoft to ‘harden’ the implementations of its communications protocols in the future, there are millions of Windows server operating systems in customer networks using the protocols in their current state. It is not feasible to retrofit those products to protect them against improper use of the communications protocols, because adding the necessary protective mechanisms would require extensive changes to products already in use. Although the Commission derides what it refers to as ‘security through obscurity’ (annex S.2), customers would be unhappy to learn that disclosures ordered by the Commission made existing Windows server operating systems vulnerable to malfunction (Madnick & Meyer report, annex T.7). The protocols are complicated and the chances of a mistake in implementing them in another work group server operating system are high. Such a mistake could lead to significant data loss and data corruption, with concomitant harm to Microsoft and its customers. Needless to say, customers take data loss and corruption seriously and Microsoft would suffer serious harm, in particular to its reputation, if the existing base of Windows server operating systems were placed at risk by the incorrect use of Microsoft’s communications protocols. The Commission suggests that ‘any harm would be reversible … once the Decision is annulled’. However, annulment could not restore lost or corrupted data, nor would it restore Microsoft’s good name.

–     Irreversible change in market conditions

146
Microsoft maintains that compulsory licensing would irremediably change prevailing market conditions to its disadvantage. It is apparent that the Commission sought to bring about that change: recital 695 to the Decision states that ‘[i]f Microsoft’s competitors had access to the interoperability information that Microsoft refuses to supply, they could use the disclosures to make the advanced features of their own products available in the framework of the web of interoperability relationships that underpin the Windows domain architecture’.

147
In order to demonstrate the irreversible change that will occur on the market, Microsoft claims that examination of the detailed specifications for communications protocols which it owns, made possible by compulsory licensing, will reveal to competitors important aspects of the design of Windows server operating systems. As explained in the Madnick & Meyer report, the specifications for formerly private communications protocols would be particularly likely to reveal information about the internal design of operating systems because those protocols are often dependent on their specific implementation in software code. The use of such communications protocols by third parties would therefore entail specifying many details, although those details remain implicit when the protocols are used privately by different copies of the same operating system running on different servers.

148
The large-scale disclosure of such information would enable Microsoft’s competitors to reproduce in their server operating systems a range of functionality that Microsoft has developed through its own research and development efforts. The resulting damage to Microsoft would extend beyond the scope of the compulsory disclosure, beyond the work group server operating system market and indeed beyond the geographic scope of a compulsory licence.

The balance of interests

149
Microsoft maintains, first, that the Communities’ interest in imposing an effective remedy does not require the immediate implementation of Article 5(a) to (c) of the Decision.

150
First of all, as the purpose of Article 82 EC is ‘to safeguard the interests of consumers, rather than to protect the position of particular competitors’ (order in IMS Health v Commission, paragraph 133 above, paragraph 145), significant weight should be given to the absence of harm to consumers. In the present case, customers benefit from various interoperability solutions. Thus, in five years of proceedings before the Commission, not a single undertaking stated that it wanted to choose a non-Windows server operating system but was forced by interoperability concerns to choose a Windows server operating system.

151
Next, the implementation of the remedy provided for in Article 5 of the Decision is unnecessary, since Microsoft’s competitors have no urgent need for access to its communications protocols. Furthermore, in Microsoft’s submission, the Commission itself does not claim that competition between vendors of work group server operating systems would disappear in the short term should Article 5 of the Decision be suspended.

152
On that point, Microsoft claims that its competitors’ products are competitive at present and provides various studies and projections concerning Linux, UNIX and Novell in support of that contention.

153
Microsoft further submits that the Commission has not established a link between the remedy provided for in Article 5 of the Decision and any request formulated by suppliers of work group server operating systems. Neither Sun Microsystems, Novell nor Free Software Foundation/Samba have asked Microsoft to licence its communications protocols.

154
The advantage which those competitors may derive from being able to discover how Microsoft has addressed certain issues in the design of server operating systems cannot prevail over Microsoft’s legitimate interest in protecting its own technology. When the interests are weighed up, the public interest in maintaining effective competition must clearly take precedence over the interests of Microsoft’s competitors alone.

155
The risk that competing server operating systems suppliers might exit the market should the effects of Article 5 of the Decision be suspended does not exist. Microsoft’s competitors have been licensing their server operating systems to enterprise customers for many years without providing access to the specifications for the communications protocols that the Decision would require Microsoft to deliver to them. In support of its analysis, Microsoft provides various data relating to certain of its competitors on the market in question.

156
Last, Microsoft contends that it cannot be maintained that the implementation of the Decision is urgent, since the administrative procedure, during which the Commission’s assessment of the situation constantly changed, lasted five years.

157
Second, in the exercise consisting in balancing the interests, account should be taken of the Communities’ obligations under international treaties, including the TRIPS Agreement, and also of the merits of the main action. On that last aspect, Microsoft submits, in reliance on the order of the President of the Court of Justice of 11 April 2002 in Case C-481/01 P(R) NDC Health v IMS Health and Commission [2002] ECR I-3401, that the merits of its main action must be taken into account in the balancing of interests. In the present case, it is particularly clear that the Commission has not established that the criteria laid down in the case-law (judgment in IMS Health, paragraph 99 above) which permit an undertaking in a dominant position to be compelled to grant licences to its competitors were satisfied.

158
Third, and last, Microsoft states that since the adoption of the Decision Sun Microsystems has reached an agreement with Microsoft which addresses all the concerns underlying its complaint to the Commission. There is therefore no immediate need to implement the Decision while the main action is pending.

159
ACT claims that unless the remedy is suspended it will produce serious and irreparable effects owing to the damage to the strength and value of its members’ intellectual property rights in the EEA.

160
More specifically, ACT maintains, first, that the immediate applicability of the remedy would constitute a groundbreaking precedent in the compulsory licensing of intellectual property rights which would quickly and substantially reduce the value of the intellectual property rights owned by its members. In that regard, ACT claims that the Commission has interpreted and applied Article 82 EC in a way that is inconsistent with the Community’s obligations under Articles 13, 31 and 39 of the TRIPS Agreement.

161
ACT maintains, second, that disclosure of the communications protocols which have thus far been the exclusive property of Microsoft would result in the instability of Windows Client PC and server operating systems, which would immediately cause significant harm for its members.

162
CompTIA submits that, in so far as it requires Microsoft to supply its intellectual property to any undertaking present on the servers market, the remedy provided for in Article 5 of the Decision will reduce the level of protection for the entire information technology and communications industry, give rise to legal uncertainty and have the immediate effect of reducing investment in the technology sector and therefore the general level of economic activity.

163
CompTIA further contends that the serious and irreparable damage which that remedy will cause to the entire sector, and also to the members of CompTIA, exceeds any possible adverse effect which the lack of immediate disclosure could have on the public interest or the interest of third parties. In that context, CompTIA states that no evidence has been brought to its attention of an interoperability problem on the servers market, even though it plays a greater role than any other trade association in certifying the qualifications of technology industry workers in the servers sector.

b)     Arguments of the Commission and the parties granted leave to intervene in support of the form of order which it seeks

164
The Commission contends, by way of preliminary submission, that the application for suspension of implementation of Article 5(a) to (c) of the Decision relies to a large extent on the assessment of the impact which the Decision is supposed to have on the exercise of Microsoft’s ‘intellectual property rights’; it makes a number of introductory observations in that regard. In its observations of 13 September 2004, the Commission states that even on the assumption that Microsoft has expressly shown that the Decision would force it to license its intellectual property rights, the Commission’s argument would remain just as valid. FSF-Europe supports the Commission’s argument.

Preliminary observations

165
First of all, the Commission states that Article 5(a) to (c) of the Decision requires Microsoft to provide technical documentation, called ‘specifications’, which describes in detail the ‘protocols’ referred to in Article 1(1) of the Decision. However, it is important to distinguish that technical documentation from the source code of Microsoft’s products. A competitor wishing to write a server operating system that understands Microsoft’s protocols will have to write code in its product that implements the specifications. Two programmers implementing the same protocol specifications will not write the same source code and the performances of their programmes will be different (recitals 24, 25, 698 and 719 to 722). From that aspect, the protocols may be compared with a language whose syntax and vocabulary are the specifications, since the mere fact that two persons learn the syntax and the vocabulary of the same language does not mean that they will use it in the same way.

166
Next, against that background, the Commission examines the various intellectual property rights on which Microsoft relies.

–     Copyright

167
As regards, first, copyright, the Commission maintains that Microsoft’s contentions are inaccurate, if not misleading. Microsoft wrongly gives the impression that the use of interoperability information in order to make interoperability effective normally constitutes breach of copyright. Microsoft is also wrong to state that copyright protection extends to the communications protocols and to rely on copyright in the ‘specifications’ to support its contention that the use of the knowledge contained in those specifications constitutes breach of copyright.

168
Although the Commission does not rule out the possibility that those specifications may, as such, be covered by copyright, it maintains that that does not mean that the use of the information contained in that document, in the form of implementation in an operating system, constitutes a breach of copyright, since, as the Decision states, implementation of a specification does not constitute copying, but leads to a clearly distinct work (recitals 25, 570 et seq. and 719 et seq.)

169
In its observations of 13 September 2004, the Commission maintains, essentially, that implementation of the communications protocols does not constitute a form of exploitation prohibited by copyright.

170
From the many comments made by the Commission on Microsoft’s observations of 19 August 2004, it is appropriate to mention the answers made more specifically to five categories of arguments.

171
First, the Commission states that Microsoft relied for the first time in its observations of 19 August 2004 on a right of ‘disclosure’ (paragraph 119 above). The Commission observes that Article 6bis of the Berne Convention, which sets out the ‘moral rights’ of the copyright owner, does not mention that right and that, accordingly, an obstacle to the exercise of that alleged right cannot be contrary to the ‘normal exploitation of the computer program’ as defined in Article 6(3) of Directive 91/250, since that provision provides that that exploitation must be interpreted ‘in accordance with the provisions of the Berne Convention’. At most, the right of disclosure is a ‘moral right’ which cannot be licensed. Furthermore, reliance on a right of disclosure is difficult to reconcile with the fact that Microsoft’s products are on the market, that persons are able to observe, study or test them and, under certain circumstances, to decompile them. Last, Microsoft’s reasons for refusing disclosure of the information concerned are purely economic and therefore have nothing to do with the rationale of the right in question.

172
Second, the Commission disputes that the technical documentation which will have to be disclosed can be regarded as a ‘computer program’ protected by Directive 91/250, on the ground that it constitutes ‘preparatory design material’ for a computer program (paragraph 118 above). The information in question is not composed ex ante as an internal aid to the creation of Microsoft’s programs but written ex post for the sole purpose of disclosing only limited information to Microsoft’s competitors.

173
In response to Microsoft’s assertion, based on Article 4 of Directive 91/250, that implementation of the protocols in question would ‘almost certainly’ be an adaptation or translation of the specifications covered by Microsoft’s copyright (paragraph 120 above), the Commission states that the applicant fails to substantiate that assertion. The text of Directive 91/250 and its legislative history lead to the conclusion that writing interfacing software on the basis of interface specifications is not normally covered by Article 4 of that directive. Article 6 of Directive 91/250 is based on the premiss that the use of interoperability information, extracted by decompilation – which is ‘exempted’ – in order to ‘achieve the interoperability of an independently created computer program with other programs’ is not an act in breach of copyright, unless the information is ‘used for the development, production or marketing of a computer program substantially similar in its expression’ to the decompiled program. If Microsoft were correct, Article 6 of Directive 91/250 could never be invoked to build compatible products, since the creation of those products would be an ‘act which infringes copyright’ and therefore prohibited by Article 6(2)(c).

174
Third, the Commission refutes the restrictive interpretation by Mr Prescott (Annex T.3) of Article 1(2) of Directive 91/250, which provides that ‘[i]deas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright’. Mr Prescott’s argument that the whole, or the structure, of the ‘ideas’ in question is protected by copyright where they form a ‘substantial part of the protected work’ is flawed because, first, it is not consistent with Article 1(2) and Article 6 of Directive 91/250 and, second, the judgments of the English courts on which he bases his analysis have nothing to do with the present case.

175
Fourth, as regards Microsoft’s arguments, referred to at paragraph 120 above, which suggest, first of all, that the remedy would lead to a particular ‘temptation’, as it were, for Microsoft’s competitors to develop implementations which infringed its copyright and, next, that the Decision makes no provision for any safeguard against such ‘temptation’, the Commission states that the remedy does not require disclosure of the source code and that, consequently, the prohibition in Article 6(2) of Directive 91/250 on using the information obtained by decompilation ‘for the development, production or marketing of a computer program substantially similar in its expression’ is not applicable.

176
Fifth, the Commission maintains that, contrary to Microsoft’s contention (paragraph 129 above), Microsoft has not disclosed the interfaces that third-party software programs need to call upon the functionality of Windows server operating systems. The interfaces to which Microsoft refers are ‘application programming interfaces’ (‘APIs’) which allow applications running on a Windows server operating system to use the services of that server operating system, whereas the interfaces at issue in the present case are those through which a Windows work group server delivers its services to Windows work group networks (recital 210).

–     Patents

177
As regards patents, the Commission notes at the outset that during the administrative procedure Microsoft mentioned only one patent application, whereas during the judicial procedure it refers to three European patents and two pending patent applications. Microsoft has not produced the documentation from which it might be determined whether a licence in respect of one or more of those patents would be indispensable for a person implementing the relevant protocols.

178
In its observations of 13 September 2004, the Commission states that before the adoption of the Decision Microsoft mentioned the existence of only one patent, on 20 January 2004, whereas the three European patents referred to in the document setting out Mr Knauer’s opinion (Annex T.5; paragraph 91 above) were granted before the end of 2001 and the two European patent applications were, according to that document, filed before the end of 2002. As regards the content of Mr Knauer’s opinion, the Commission observes that Mr Knauer had to ‘rely on information received from Microsoft in regard to the selection of protocols that fall under Article 5 of the Decision’. Neither is it obvious to the Commission that a competitor of Microsoft taking advantage of the implementation of the Decision will be infringing some of the claims in those patents. The doubts expressed as to whether a developer of server software using the relevant protocols in order to communicate with Windows clients would infringe the claims in question are confirmed by Microsoft’s behaviour towards Samba, an ‘open source’ product which implements certain Microsoft communications protocols that the Samba group developers have identified using reverse-engineering techniques. Samba appears to have incorporated SMB’s ‘opportunistic locking’ as early as January 1998 (version 1.9.18) and Dfs as early as April 2001 (version 2.2.0). So far as the Commission is aware, the Samba group has never licensed the patents in question from Microsoft and Microsoft has never claimed that its patents were being infringed by the Samba group. The Commission observes that the three patents in question were all granted before the end of 2001 and that, in view of the technical description which they propose, they appear to relate to the NT 4.0 generation of Microsoft’s products, which predates Windows 2000.

179
The relationship between Microsoft’s patent claims and the Decision therefore remains unclear.

180
The Commission concludes on that point that Microsoft has not proved that any of its patents would be infringed should Article 5(a) to (c) of the Decision be implemented.

–     Trade secrets

181
The Commission maintains that the parallel which Microsoft draws between trade secrets and intellectual property rights is not self-evident. It refers to the Tetra Pak II case (Commission Decision 92/163/EEC of 24 July 1991 relating to a proceeding pursuant to Article 86 of the EEC Treaty (IV/31043 – Tetra Pak) (OJ 1992 L 72, p. 1)), which culminated in the judgment in TetraPak v Commission, paragraph 126 above (paragraphs 84 and 139).

182
While there may be a presumption of legitimacy in respect of a refusal to license an intellectual property right created by law, the legitimacy in competition law of a refusal to disclose a secret the existence of which depends purely on a unilateral business decision should depend on the facts of the case and, in particular, on the interests at stake. In the present case, Directive 91/250 shows that the interest in the protection of the inventive effort underlying the software does not entitle the inventor to hinder the use of interoperability information inherent in that software for the purpose of achieving interoperability.

183
The Commission acknowledges that Directive 91/250 does not require the inventor to disclose the information on his own initiative. However, from the aspect of any trade secret that Microsoft may have, disclosing interoperability information for the purpose of achieving interoperability is not comparable to licensing a competitor to copy a work protected by intellectual property rights legislation. That assertion is supported by the technical relevance of such disclosure, by the practices existing in the software industry and by Microsoft’s own behaviour when it entered the market.

184
In its observations of 13 September 2004, the Commission rejects the idea that the protocols reflect important innovation, since the truth of that assertion has not been established by Microsoft either in its application, or in its subsequent observations, or in annex T.3. The Commission also regards as unfounded the argument that the remedy would have the effect of ‘transferring’ the innovation in question to Microsoft’s competitors, since, first, disclosure of the information would not entail a transfer of the essential value of the Windows operating system and, second, under Article 82 EC an undertaking in a dominant position may be ordered to license an essential element of one of its products, as demonstrated by Magill and IMSHealth, paragraph 99 above.

185
FSF-Europe submits, in essence, that the information which the Decision requires Microsoft to disclose has little value in terms of innovation and contains a number of incompatibilities deliberately introduced in pre-existing written protocols. Microsoft’s approach consists in adopting pre-existing protocols and then altering them with the aim of preventing or prohibiting interoperability. It has acted in that way in regard to several work group server protocols, disclosure of which the Samba group sought in order to create a compatible product, namely the CIFS, DCE/RPC (Distributed Computing Environment/Remote Procedure Call), DCE/RCP IDL (‘Interface Definition Language’), Kerberos 5 et LDAP (Active Directory) protocols.

A prima facie case

186
The Commission rejects at the outset Microsoft’s assertions that the present case is merely about its relationship with Sun Microsystems and that Sun Microsystems did not request the information which the Decision orders Microsoft to disclose.

187
Next, the Commission recalls that it stated in its preliminary observations that no copyright owned by Microsoft would prevent the interoperability information from being used for the purpose of achieving interoperability (paragraphs 167 and 168 above). None the less, it comments on the four criteria laid down in the case-law in respect of compulsory licences and assumes, for the sake of argument, first, that some intellectual property right issues may be at stake and, second, that no other criterion is relevant to a finding of exceptional circumstances, although in the Commission’s view the second assumption is contradicted by the wording of the IMSHealth judgment, paragraph 99 above (paragraph 38).

188
As regards, first, the indispensability of the information alleged to be covered by intellectual property rights, the Commission contends that Microsoft’s claims that there are ‘many other ways of achieving interoperability’ have already been refuted in the Decision (recitals 666 to 687).

189
Second, the Commission rejects Microsoft’s claim that it has not prevented the emergence of any new product for which there was unsatisfied consumer demand.

190
It follows from paragraph 49 of the judgment in IMSHealth, paragraph 99 above, that a ‘new product’ is a product which is not limited ‘essentially to duplicating’ the products already offered on the market by the owner of the copyright. It is sufficient, therefore, that the product in question contains substantial elements contributed by the licensee’s own efforts. Accordingly, it is not precluded that the products of the owner of the copyright should compete with the future products of the licensee, as shown by the facts of the cases determined by the Community judicature (Case T-69/89 RTE v Commission [1991] ECR II-485, paragraph 73; Magill, paragraph 53; and IMSHealth, paragraph 99 above). Furthermore, the ‘new product’ criterion does not imply an obligation to provide concrete proof that the licensee’s product would attract customers who would not buy the products offered by the existing supplier. Any other interpretation would render the case-law largely meaningless, since owners of intellectual property rights normally have excellent reasons for granting licences to operators who intend to manufacture goods which do not compete with their own goods. A situation of that type therefore does not normally lead to a refusal to supply. In IMSHealth, paragraph 99 above, the Court of Justice concentrated on product differentiation which could affect consumer choices, or, in other words, on whether there is ‘potential demand’ for the new product. The precise consequences which that differentiation will have for the choices made and, in the longer term, for the emergence of products attracting new customer categories, will be determined by the market.

191
In the present case, the implementation of the protocols can take very different forms (recitals 24, 25 and 698), which provides sufficient scope for product differentiation, and there are significant possibilities for product differentiation which could enhance competition but which at present are neutralised by Microsoft’s conduct.

192
Third, as regards the elimination of competition on a secondary market, the Commission states that it thoroughly analysed in the Decision the developments on the relevant market and the importance of interoperability for those developments (recitals 590 to 692) and, in particular, the alleged ‘steady growth of Linux’ (recitals 598 to 610). In the application for interim relief, Microsoft does not claim that there has been any error in that regard. Microsoft incorrectly assumes that, where competition is eliminated gradually, a ‘cease and desist order’ on the basis of Article 82 EC could be made only when there would no longer be any point in making such an order, because the market had irreversibly turned into a monopoly, whereas in reality it is sufficient that the refusal to license be ‘likely’ to exclude competition (Bronner, paragraph 99 above, paragraph 40, and IMSHealth, paragraph 99 above, paragraphs 37 and 38).

193
Fourth, Microsoft does not mention any specific objective justification for its conduct, apart from making a general reference to ‘its intellectual property rights’, which has already been refuted in the Decision (recitals 709 to 763).

194
The Decision therefore shows, and Microsoft has not seriously disputed, that Microsoft’s conduct satisfied the requirements laid down in the case-law.

195
Last, as regards the incompatibility of the Decision with the TRIPS Agreement, the Commission refers to the findings set out at recitals 1052 and 1053 to the Decision.

Urgency

196
The Commission submits that Microsoft has not shown that it would suffer serious and irreparable damage should implementation of the Decision not be suspended. The interveners SIIA and FSF-Europe support the Commission’s argument.

The balance of interests

197
The Commission contends that the balance of interests tilts in favour of immediate implementation of Article 5(a) to (c) of the Decision and therefore claims that the application should be dismissed. The interveners SIIA and FSF-Europe support the Commission’s arguments.

2.     Findings of the President

a)     A prima facie case

198
In support of its claim that the prima facie case requirement is satisfied, Microsoft essentially maintains, first, that the conditions on which a refusal to supply information protected by intellectual property rights constitutes an abuse of a dominant position prohibited by Article 82 EC are not satisfied in the present case; second, that Sun Microsystems has not requested the information which the Decision orders the applicant to supply and that its request did not relate to the development of software in the EEA; and, third, that the Commission has failed to fulfil the obligations imposed on the Community by the TRIPS Agreement.

199
In the light of the arguments developed by Microsoft in the context of the interim relief proceedings, the second and third sets of arguments cannot be regarded as sufficiently serious to constitute a prima facie case.

200
The arguments relating to Sun Microsystems’ request were refuted in detail in the Decision (recitals 199 to 207, 564 and 565) and Microsoft has not shown prima facie that the Commission erred in defining the scope of Sun Microsystems’ request. Likewise, the argument that Sun Microsystems’ request did not relate to software development ‘in the EEA’ cannot succeed, since that request was couched in general terms and since the EEA is necessarily a part of the relevant worldwide market, as clearly demonstrated at recitals 185 et seq. and 427 to the Decision.

201
The plea alleging failure to take account of the TRIPS Agreement has not been expanded in such a way that the President can make a proper ruling on it. Microsoft has merely claimed in its application for interim relief that, ‘in imposing a mandatory licence on Microsoft, the Commission [did] not properly take into account the obligations imposed on the European Communities by [the TRIPS Agreement]’. Furthermore, the reference to the arguments expounded in annex T.9 has not been found to be consistent with the applicable procedural rules (see paragraph 88 above).

202
The President will therefore confine himself to examining the single plea alleging infringement of Article 82 EC, it being noted that in the context of the present application Microsoft does not deny that it holds a dominant position on the client PC operating system market and on the work group server operating system market. It is therefore contesting only the allegedly abusive nature of its refusal to disclose the interoperability information and to authorise its use by its competitors.

203
It should be recalled at the outset that recitals 546 to 791 to the Decision are devoted to an examination of the abusive nature of the refusal to supply the interoperability information. The Commission states there that it must analyse the whole of the circumstances particular to each case before being able to conclude that there are exceptional circumstances characterising an abusive refusal (recitals 546 to 559). In the present case, the Commission considered that the exceptional circumstances consisted in the fact that the refusal to supply the interoperability information was directed against Sun Microsystems, formed part of a general pattern of conduct and entailed a reduction in the level of disclosure of information (recitals 560 to 584), that it risked eliminating competition (recitals 585 to 692) and that it had a negative effect on technical development, to the prejudice of consumers (recitals 693 to 708). In the light of those ‘exceptional circumstances’, the Commission found that Microsoft’s arguments did not amount to sufficient objective justification for the refusal to disclose the interoperability information, whether in terms of incentives for Microsoft to innovate (recitals 709 to 763) or of its having no interest in restricting competition (recitals 764 to 778).

204
In the present case, the prima facie case requirement must be considered to be satisfied, regard being had to the questions of principle raised by the case and to the fact that certain pleas and arguments require a thorough examination. In substance, it must be ascertained whether the circumstances taken into account by the Commission are correct in fact and capable in law of founding the conclusion that there are exceptional circumstances which justify ordering the applicant to disclose valuable information protected by intellectual property rights.

205
The questions of principle relate to the conditions on which the Commission is justified in concluding that a refusal to disclose information constitutes an abuse of a dominant position prohibited by Article 82 EC.

206
First, this case raises the question whether the conditions laid down by the Court in IMSHealth, paragraph 99 above, are necessary or merely sufficient. The Commission contends in the Decision that the existence of exceptional circumstances must be assessed on a case-by-case basis and that it cannot therefore be excluded, without a thorough examination of each case, that a refusal may be abusive, even though the conditions hitherto laid down by the Community judicature are not satisfied. Microsoft, on the contrary, maintains in its application that a refusal to supply can be found to be abusive only where the conditions laid down by the Community judicature are satisfied. Clearly, that question cannot be resolved at the interim relief stage. It should be pointed out, however, that the Court of Justice has held, in the words of paragraph 38 of the judgment in IMSHealth, that ‘it is sufficient’, in order for ‘the refusal by an undertaking which owns a copyright to give access to a product or service indispensable for carrying on a particular business to be treated as abusive’, ‘that that refusal is preventing the emergence of a new product for which there is a potential consumer demand, that it is unjustified and [that it is] likely to exclude all competition on a secondary market’.

207
Second, this case raises the question whether, where the exercise of an intellectual property right is in issue, the nature of the protected information must be taken into account. Microsoft contends that the Decision compels it to supply competitors with technology that is secret and valuable and which, consequently, is intrinsically different from the information at issue in Magill and IMSHealth, paragraph 99 above. Thus, the requirements to be satisfied in order for a refusal to disclose information to constitute an abuse of a dominant position are all the stricter because the information is valuable. The Commission, on the other hand, maintains that the Community judicature has never taken the ‘value’ of an intellectual property right into consideration. On that point, the President finds that the hitherto secret specifications for the communications protocols which the Decision requires Microsoft to draw up and disclose are clearly fundamentally different from the information at issue in Magill and IMSHealth, paragraph 99 above. In those cases the information at issue was widely known in the sector: the television programme listings were sent free of charge to newspapers every week and the map of Germany was in reality an industry standard for the presentation of sales figures. However, the question whether, and if so to what extent, a distinction must be drawn according to whether the information is known or secret is even less amenable to determination at this stage because account must be taken more generally of parameters such as the value of the underlying investment, the value of the information concerned for the organisation of the dominant undertaking and the value transferred to competitors in the event of disclosure.

208
This case also raises the question whether the requirements laid down by the Court of Justice in its judgment in IMSHealth, paragraph 99 above, are satisfied in the present case. The Commission does not dispute the relevance of that judgment, which, essentially, consolidates the position thus far expressed by the Community judicature as regards the circumstances in which a refusal to license intellectual property rights constitutes an abuse.

209
The dispute between the parties relates to the indispensability of the information in issue, the barrier to the emergence of a new product for which there is claimed to be an unsatisfied demand, the risk of eliminating competition on the secondary market and the objectively justified nature of the refusal. While it is for the Court dealing with the substance of the case to resolve the disputes in respect of each of those requirements, the President none the less considers it necessary to identify the sources of the dispute between the parties which he deems sufficiently serious to constitute a prima facie case. In that regard, the accent will be placed on two specific aspects.

210
As regards, first, the indispensability of the interoperability information, it should be observed that that question is dealt with at recitals 666 to 687 to the Decision.

211
On that point, Microsoft refers to a number of methods allowing sufficient interoperability between the operating systems of different suppliers.

212
That argument emphasises the disagreement between the parties as regards the level of interoperability required. As stated at recitals 743 to 763 to the Decision, the information which must be provided in accordance with the remedy is the ‘information necessary to achieve … interoperability’ within the meaning of Article 6 of Directive 91/250, on decompilation. Microsoft maintains that the decompilation provided for in Article 6 of Directive 91/250 is permitted only where the interfaces are indispensable to ensure the functionality of an independently-created software program and that in the present case the specifications for its communications protocols are not necessary to ensure the functionality of an independently-created work group server operating system. Microsoft concludes that the information which it has refused to communicate cannot be regarded as interoperability information.

213
The preamble to Directive 91/250 defines interoperability as ‘the ability to exchange information and mutually to use the information which has been exchanged’. At the 27th recital, that directive states that its provisions are without prejudice to the application of the competition rules under Article 82 EC ‘if a dominant supplier refuses to make information available which is necessary for interoperability as defined in this Directive’. However, the question whether, in the present case, the information requested from Microsoft is actually necessary for interoperability, as defined in Directive 91/250, requires a thorough examination of the elements of fact in the light of the applicable legislation, which only the Court dealing with the substance of the case can undertake.

214
As regards, second, the objectively justified nature of the refusal, Microsoft contends that it was permissible for it to rely on its intellectual property rights and to refuse to license its technology to third-party operating systems providers. In answer to a written question put by the President, Microsoft also claimed that the information requested by Sun Microsystems related to technology under development.

215
In order to understand the scope of Microsoft’s argument, the President questioned Microsoft at the hearing. It emerged that it cannot be excluded, in Microsoft’s submission, that the refusal may be objectively justified by the intellectual property rights which Microsoft holds in the information requested by Sun Microsystems or, in other words, that the justification for the refusal lies in the need not to disclose information because it is legally protected and is valuable.

216
That argument may be understood as meaning that Microsoft was entitled to refuse to disclose legally-protected information irrespective of whether or not there were exceptional circumstances.

217
Thus, on the one hand, Microsoft’s argument means that, in the absence of duly-established exceptional circumstances, the exercise of the prerogatives recognised to the holder of intellectual property rights cannot give rise to abusive conduct within the meaning of Article 82 EC. As that argument is very closely linked to the question whether the Commission has demonstrated that ‘exceptional circumstances’ existed in the present case, it cannot be examined separately from that question (see paragraph 206 above).

218
On the other hand, Microsoft’s argument also means that, even if exceptional circumstances had been established by the Commission, its refusal to communicate the information in question was justified by the need to protect the valuable information covered by the intellectual property rights.

219
That argument, which was developed by Microsoft during the administrative procedure, as shown at recital 709 to the Decision, was rejected by the Commission in the Decision (recitals 710 to 712), which concluded on that point that, in regard