Full text: EU judgment against Microsoft

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JUDGMENT OF THE COURT OF FIRST INSTANCE (Grand Chamber)

17 September 2007 (*)

(Competition – Abuse of dominant position – Client PC operating systems – Work group server operating systems – Streaming media players – Decision finding infringements of Article 82 EC – Refusal of the dominant undertaking to supply and authorise the use of interoperability information – Supply by the dominant undertaking of its client PC operating system conditional on the simultaneous acquisition of its media player – Remedies – Appointment of an independent monitoring trustee – Fine – Determination of the amount – Proportionality)

In Case T-201/04,

Microsoft Corp., established in Redmond, Washington (United States), represented by J.-F. Bellis, lawyer, and I. Forrester QC,

applicant,

supported by

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

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,

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

TeamSystem SpA, established in Pesaro (Italy),

Mamut ASA, established in Oslo (Norway),

represented by G. Berrisch, 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 initially by R. Wainwright, F. Castillo de la Torre, P. Hellström and A. Whelan, acting as Agents, and subsequently by F. Castillo de la Torre, P. Hellström and A. Whelan,

defendant,

supported by

Software & Information Industry Association, established in Washington, DC, represented by J. Flynn QC, C. Simpson and T. Vinje, Solicitors, and D. Paemen, N. Dodoo and M. Dolmans, lawyers,

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

Audiobanner.com, established in Los Angeles, California (United States), represented by L. Alvizar Ceballos, lawyer,

European Committee for Interoperable Systems (ECIS), established in Brussels (Belgium), represented by D. Paemen, N. Dodoo and M. Dolmans, lawyers, and J. Flynn QC,

interveners,

APPLICATION for annulment of Commission Decision 2007/53/EC of 24 March 2004 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement against Microsoft Corp. (Case COMP/C‑3/37.792 – Microsoft) (OJ 2007 L 32, p. 23) or, in the alternative, annulment or reduction of the fine imposed on the applicant in that decision,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Grand Chamber),

composed of: B. Vesterdorf, President, M. Jaeger, J. Pirrung, R. García‑Valdecasas, V. Tiili, J. Azizi, J.D. Cooke, A.W.H. Meij, N.J. Forwood, E. Martins Ribeiro, I. Wiszniewska-Białecka, V. Vadapalas and I. Labucka, Judges,

Registrar: E. Coulon,

having regard to the written procedure and further to the hearing on 24, 25, 26, 27 and 28 April 2006,

gives the following

Judgment

Background to the dispute

1        Microsoft Corp., a company established in Redmond, Washington (United States), designs, develops and markets a wide variety of software products for different kinds of computing devices. Those software products include, in particular, operating systems for client personal computers (‘client PCs’), operating systems for work group servers and streaming media players. Microsoft also provides technical assistance for its various products.

2        On 15 September 1998, Mr Green, a Vice-President of Sun Microsystems, Inc. (‘Sun’), a company established in Palo Alto, California (United States) which supplies, in particular, servers and server operating systems, wrote to Mr Maritz, a Vice-President of Microsoft, as follows:

‘We are writing to you to request that Microsoft provide [Sun] with the complete information required to allow Sun to provide native support for COM objects on Solaris.

We also request that Microsoft provide [Sun] with the complete information required to allow [Sun] to provide native support for the complete set of Active Directory technologies on Solaris.

We believe it is in the industry’s best interest that applications written to execute on Solaris be able to seamlessly communicate via COM and/or Active Directory with the Windows operating systems and/or with Windows-based software.

We believe that Microsoft should include a reference implementation and such other information as is necessary to insure, without reverse engineering, that COM objects and the complete set of Active Directory technologies will run in full compatible fashion on Solaris. We think it necessary that such information be provided for the full range of COM objects as well as for the full set of Active Directory technologies currently on the market. We also think it necessary that such information be provided in a timely manner and on a continuing basis for COM objects and Active Directory technologies which are to be released to the market in the future.’

3        That letter will be referred to below as ‘the letter of 15 September 1998’.

4        By letter of 6 October 1998, Mr Maritz replied to the letter of 15 September 1998. In his letter, he said:

‘Thank you for your interest in working with Windows. We have some mutual customers using our products, and I think it is great you are interested in opening up your system to interoperate with Windows. Microsoft has always believed in helping software developers, including [its] competitors, build the best possible products and interoperability for [its] platform.

You may not realise that the information you requested on how to interoperate with COM and the Active Directory technologies is already published and available to you and every other software developer in the world via the Microsoft Developer Network (MSDN) Universal product. MSDN contains comprehensive information about the services and interfaces of the Windows platform and is a great source of information for developers interested in writing to or interoperating with Windows. In fact, Sun currently has 32 active licenses for the MSDN Universal subscription. Furthermore, as your company has done in the past, I assume you will be sending a significant number of people to attend our Professional Developers Conference in Denver October 11 – October 15, 1998. This will be another venue to get the technical information you are seeking in order to work with our systems technologies. Some of the 23 Sun employees that attend[ed] last year[’]s conference should be able to provide you with their comments on the quality and depth of information discussed at these Professional Developers Conferences.

You will be pleased to know that there is already a reference implementation of COM on Solaris. This implementation of COM on Solaris is a fully supported binary available from Microsoft. Source code for COM can be licensed from other sources including Software AG. …

Regarding the Active Directory, we have no plans to “port” [it] to Solaris. However, to satisfy our mutual customers there are many methods with varying levels of functionality in order to interoperate with the Active Directory. For example, you can use the standard LDAP to access the Windows NT Server Active Directory from Solaris.

If after attending [the Professional Developers Conference] and reading through all the public MSDN content you should require some additional support, our Developer Relations Group has account managers who strive to help developers who need additional support for Microsoft’s platforms. I have asked Marshall Goldberg, the Lead Program Manager, to make himself available should you need it …’

5        Mr Maritz’s letter of 6 October 1998 will be referred to below as ‘the letter of 6 October 1998’.

6        On 10 December 1998, Sun lodged a complaint with the Commission pursuant to Article 3 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p. 87).

7        Sun’s complaint related to Microsoft’s refusal to give it the information and technology necessary to allow its work group server operating systems to interoperate with the Windows client PC operating system.

8        On 2 August 2000, the Commission sent Microsoft a first statement of objections (‘the first statement of objections’), which related in effect to questions concerning the interoperability of Windows client PC operating systems and other suppliers’ server operating systems (client/server interoperability).

9        Microsoft responded to the first statement of objections on 17 November 2000.

10      In the meantime, in February 2000, the Commission, acting on its own initiative, launched an investigation relating, particularly, to Microsoft’s Windows 2000 generation of client PC and work group server operating systems and to the integration by Microsoft of its Windows Media Player in its Windows client PC operating system. The client PC operating system in the Windows 2000 range was intended for professional use and was called ‘Windows 2000 Professional’, whereas the server operating systems in that range were presented under the three following versions: Windows 2000 Server, Windows 2000 Advanced Server and Windows 2000 Datacenter Server.

11      That investigation concluded on 29 August 2001, when the Commission sent Microsoft a second statement of objections (‘the second statement of objections’), in which it reiterated its previous objections concerning client/server interoperability. The Commission also addressed certain questions relating to interoperability between work group servers (server/server interoperability). In addition, the Commission raised a number of questions concerning the integration of Windows Media Player in the Windows client PC operating system.

12      Microsoft responded to the second statement of objections on 16 November 2001.

13      In December 2001, Microsoft sent the Commission a report containing the results and the analysis of a survey carried out by Mercer Management Consulting (‘Mercer’).

14      Between April and June 2003, the Commission conducted a wide-ranging market enquiry, sending a series of requests for information to a number of companies and associations pursuant to Article 11 of Regulation No 17 (‘the 2003 market enquiry’).

15      On 6 August 2003, the Commission sent Microsoft a third statement of objections, which was, according to the Commission, intended to supplement the two earlier statements of objections and to indicate the remedies it proposed to order (‘the third statement of objections’).

16      By letter of 17 October 2003, Microsoft responded to the third statement of objections.

17      On 31 October 2003, Microsoft sent the Commission a report containing the results and the analysis of two further surveys conducted by Mercer.

18      A hearing was held by the Commission on 12, 13 and 14 November 2003.

19      On 1 December 2003, Microsoft presented supplemental observations on the third statement of objections.

20      On 24 March 2004, the Commission adopted Decision 2007/53/EC relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement against Microsoft Corp. (Case COMP/C-3.37.792 – Microsoft) (OJ 2007 L 32, p. 23; ‘the contested decision’).

The contested decision

21      In the contested decision, the Commission finds that Microsoft infringed Article 82 EC and Article 54 of the Agreement on the European Economic Area (EEA) by twice abusing a dominant position.

22      The Commission first identifies three separate worldwide product markets and considers that Microsoft had a dominant position on two of them. It then finds that Microsoft had engaged in two kinds of abusive conduct. As a result it imposes a fine and a number of remedies on Microsoft.

I –  Relevant product markets and geographic market

23      The contested decision identifies three separate product markets, namely the markets for, respectively, client PC operating systems (recitals 324 to 342 to the contested decision), work group server operating systems (recitals 343 to 401 to the contested decision) and streaming media players (recitals 402 to 425 to the contested decision).

24      The first market defined in the contested decision is the market for client PC operating systems. Operating systems are defined as ‘system software’ which controls the basic functions of the computer and enables the user to make use of the computer and run application software on it (recital 37 to the contested decision). Client PCs are defined as general-purpose computers designed for use by one person at a time and capable of being connected to a network (recital 45 to the contested decision).

25      As regards the second market, the contested decision defines work group server operating systems as operating systems designed and marketed to deliver collectively ‘basic infrastructure services’ to relatively small numbers of client PCs connected to small or medium-sized networks (recitals 53 and 345 to the contested decision).

26      The contested decision identifies, more particularly, three types of services. These are, first, the sharing of files stored on servers, second, the sharing of printers and, third, the administration of groups and users, that is to say, the administration of the means whereby those concerned can access network services (recitals 53 and 345 to the contested decision). This last type of services is that of ensuring that users have access to and make use of the network resources in a secure manner, first, by authenticating users and second, by checking that they are authorised to perform a particular action (recital 54 to the contested decision). The contested decision states that, in order to provide for the efficient storing and checking of group and user administration information, work group server operating systems rely extensively on ‘directory service’ technologies (recital 55 to the contested decision). The directory service included in Microsoft’s Windows 2000 Server operating system is called ‘Active Directory’ (recital 149 to the contested decision).

27      According to the contested decision, the three types of services described above are closely interrelated in work group server operating systems. They may be broadly described as a ‘single service’, but viewed from two different perspectives, namely that of the user (file and print services) and that of the network administrator (group and user administration services) (recital 56 to the contested decision). The contested decision characterises those different services as ‘work group services’.

28      The third market identified in the contested decision is the streaming media player market. Media players are defined as software products capable of reading audio and video content in digital form, that is to say, of decoding the corresponding data and translating them into instructions for the hardware (for example, loudspeakers or a display) (recital 60 to the contested decision). Streaming media players are capable of reading audio and video content ‘streamed’ across the Internet (recital 63 to the contested decision).

29      As regards the relevant geographic market, the Commission finds in the contested decision, as stated at paragraph 22 above, that it has a worldwide dimension for each of the three product markets (recital 427 to the contested decision).

II –  Dominant position

30      In the contested decision, the Commission finds that Microsoft has had a dominant position on the client PC operating systems market since at least 1996 and also on the work group server operating systems market since 2002 (recitals 429 to 541 to the contested decision).

31      As regards the client PC operating systems market, the Commission relies essentially on the following factors to arrive at that conclusion:

–        Microsoft’s market shares are over 90% (recitals 430 to 435 to the contested decision);

–        Microsoft’s market power has ‘enjoyed an enduring stability and continuity’ (recital 436 to the contested decision);

–        there are significant barriers to market entry, owing to indirect network effects (recitals 448 to 464 to the contested decision);

–        those network effects derive, first, from the fact that users like platforms on which they can use a large number of applications and, second, from the fact that software designers write applications for the client PC operating systems that are the most popular among users (recitals 449 and 450 to the contested decision).

32      The Commission states at recital 472 to the contested decision that that dominant position presents ‘extraordinary features’ in that Windows is not only a dominant product on the market for client PC operating systems but, in addition, is the ‘de facto standard’ for those systems.

33      As regards the work group server operating systems market, the Commission relies, in substance, on the following factors:

–        Microsoft’s market share is, at a conservative estimate, at least 60% (recitals 473 to 499 to the contested decision);

–        the position of Microsoft’s three main competitors on that market is as follows: Novell, with its NetWare software, has 10 to 25%; vendors of Linux products have a market share of 5 to 15%; and vendors of UNIX products have a market share of 5 to 15% (recitals 503, 507 and 512 to the contested decision);

–        the work group server operating systems market is characterised by the existence of significant entry barriers, owing in particular to network effects and to Microsoft’s refusal to disclose interoperability information (recitals 515 to 525 to the contested decision);

–        there are close commercial and technological links between the latter market and the client PC operating systems market (recitals 526 to 540 to the contested decision).

34      Linux is an ‘open source’ operating system released under the ‘GNU GPL (General Public Licence)’. Strictly speaking, it is only a code base, called the ‘kernel’, which performs a limited number of services specific to an operating system. It may, however, be linked to other layers of software to form a ‘Linux operating system’ (recital 87 to the contested decision). Linux is used in particular as the basis for work group server operating systems (recital 101 to the contested decision) and is thus present on the work group server operating systems market in conjunction with Samba software, which is also released under the ‘GNU GPL’ licence (recitals 506 and 598 to the contested decision).

35       ‘UNIX’ designates a number of operating systems that share certain common features (recital 42 to the contested decision). Sun has developed a UNIX-based work group server operating system called ‘Solaris’ (recital 97 to the contested decision).

III –  Abuse of a dominant position

A –  Refusal to supply and authorise the use of interoperability information

36      The first abusive conduct in which Microsoft is found to have engaged consists in its refusal to supply its competitors with ‘interoperability information’ and to authorise the use of that information for the purpose of developing and distributing products competing with Microsoft’s own products on the work group server operating systems market, between October 1998 and the date of notification of the contested decision (Article 2(a) of the contested decision). That conduct is described at recitals 546 to 791 to the contested decision.

37      For the purposes of the contested decision, ‘interoperability information’ is 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 administrative services, including the Windows domain controller services, Active Directory services and “group Policy” services to Windows work group networks’ (Article 1(1) of the contested decision).

38      ‘Windows work group network’ is defined as ‘any group of Windows client PCs and Windows work group servers linked together via a computer network’ (Article 1(7) of the contested decision).

39      A ‘protocol’ is 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 contested decision).

40      In the contested decision, the Commission emphasises that the refusal in question does not relate to Microsoft’s ‘source code’, but only to specifications of the protocols concerned, that is to say, to a detailed description of what the software in question must achieve, in contrast to the implementations, consisting in the implementation of the code on the computer (recitals 24 and 569 to the contested decision). It states, in particular, that it ‘does not contemplate ordering Microsoft to allow copying of Windows by third parties’ (recital 572 to the contested decision).

41      The Commission further considers that Microsoft’s refusal to Sun is part of a general pattern of conduct (recitals 573 to 577 to the contested decision). It also asserts that Microsoft’s conduct involves a disruption of previous, higher levels of supply (recitals 578 to 584 to the contested decision), causes a risk of elimination of competition on the work group server operating systems (recitals 585 to 692 to the contested decision) and has a negative effect on technical development and on consumer welfare (recitals 693 to 708 to the contested decision).

42      Last, the Commission rejects Microsoft’s arguments that its refusal is objectively justified (recitals 709 to 778 to the contested decision).

B –  Tying of the Windows client PC operating system and Windows Media Player

43      The second abusive conduct in which Microsoft is found to have engaged consists in the fact that from May 1999 to the date of notification of the contested decision Microsoft made the availability of the Windows client PC operating system conditional on the simultaneous acquisition of the Windows Media Player software (Article 2(b) of the contested decision). That conduct is described at recitals 792 to 989 to the contested decision.

44      In the contested decision, the Commission considers that that conduct satisfies the conditions for a finding of a tying abuse for the purposes of Article 82 EC (recitals 794 to 954 to the contested decision). First, it reiterates that Microsoft has a dominant position on the client PC operating systems market (recital 799 to the contested decision). Second, it considers that streaming media players and client PC operating systems constitute separate products (recitals 800 to 825 to the contested decision). Third, it asserts that Microsoft does not give consumers the opportunity to buy Windows without Windows Media Player (recitals 826 to 834 to the contested decision). Fourth, it contends that the tying in question restricts competition on the media players market (recitals 835 to 954 to the contested decision).

45      Last, the Commission rejects Microsoft’s arguments to the effect that, first, the tying in question produces efficiency gains capable of offsetting the anti-competitive effects identified in the contested decision (recitals 955 to 970 to the contested decision) and, second, Microsoft had no interest in ‘anti-competitive’ tying (recitals 971 to 977 to the contested decision).

IV –  Fine and remedies

46      In respect of the two abuses identified in the contested decision, a fine of EUR 497 196 304 is imposed (Article 3 of the contested decision).

47      Furthermore, the first paragraph of Article 4 of the contested decision requires that Microsoft bring an end to the infringement referred to in Article 2, in accordance with Articles 5 and 6 of that decision. Microsoft must also refrain from repeating any act or conduct that might have the same or equivalent object or effect to those abuses (second paragraph of Article 4 of the contested decision).

48      By way of remedy for the abusive refusal referred to in Article 2(a) of the contested decision, Article 5 of that decision provides as follows:

‘(a)      Microsoft … shall, within 120 days of the date of notification of [the contested 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 [the contested 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;

…’

49      By way of remedy for the abusive tying referred to in Article 2(b) of the contested decision, Article 6 of that decision orders Microsoft to offer, within 90 days of the date of notification of that decision, a full-functioning version of the Windows client PC operating system which does not incorporate Windows Media Player, although Microsoft retains the right to offer a bundle of the Windows client PC operating system and Windows Media Player.

50      Last, Article 7 of the contested decision provides:

‘Within 30 days of the date of notification of [the contested decision], Microsoft … shall submit a proposal to the Commission for the establishment of a suitable mechanism assisting the Commission in monitoring [Microsoft’s] compliance with [the contested decision]. That mechanism shall include a monitoring trustee who shall be independent from Microsoft …

In case the Commission considers [Microsoft’s] proposed monitoring mechanism not suitable it retains the right to impose such a mechanism by way of a decision.’

Proceedings for violation of United States antitrust law

51      In parallel with the Commission’s investigation, Microsoft was the subject of an investigation for violation of the United States antitrust legislation.

52      In 1998, the United States of America, 20 States and the District of Columbia brought proceedings against Microsoft under the Sherman Act. Their complaints concerned the measures taken by Microsoft against Netscape’s Internet Navigator and Sun’s Java technologies. The States concerned also brought actions against Microsoft for violation of their own antitrust legislation.

53      After the United States Court of Appeals for the District of Columbia Circuit (‘the Court of Appeals’), on appeal by Microsoft against the judgment of 3 April 2000 of the United States District Court for the District of Columbia (‘the District Court’), had given its judgment on 28 June 2001, Microsoft reached a settlement with the United States Department of Justice and the Attorneys General of nine States (‘the United States settlement’) in November 2001, in which two types of commitment were given by Microsoft.

54      First, Microsoft agreed to draw up the specifications of the communication protocols used by the Windows server operating systems in order to ‘interoperate’, that is to say, to make them compatible with the Windows client PC operating systems and to grant third parties licences relating to those specifications on specific conditions.

55      Second, the United States settlement provides that Microsoft must allow original equipment manufacturers (‘OEMs’) and end users to activate or to eliminate access to its middleware. Windows Media Player is one of the products in that category, as defined in the United States settlement. Those provisions are intended to ensure that suppliers of media software can develop and distribute products that function properly with Windows.

56      Those provisions were confirmed by a judgment of the District Court of 1 November 2002.

57      On 30 June 2004, the Court of Appeals, on appeal by the State of Massachusetts, affirmed the judgment of the District Court of 1 November 2002.

58      Pursuant to the United States settlement, the Microsoft Communications Protocol Program (‘the MCPP’) was set up in August 2002.

Procedure

59      By application lodged at the Registry of the Court of First Instance on 7 June 2004, Microsoft brought the present action.

60      By separate document lodged at the Court Registry on 25 June 2004, Microsoft lodged an application under Article 242 EC for suspension of operation of Article 4, Article 5(a) to (c) and Article 6(a) of the contested decision.

61      By order of 22 December 2004 in Case T‑201/04 R Microsoft v Commission [2004] ECR II‑4463, the President of the Court dismissed that application and reserved the costs.

62      By order of 9 March 2005, the President of the Fourth Chamber of the Court granted the following associations and companies leave to intervene in the proceedings in support of the form of order sought by Microsoft:

–        The Computing Technology Industry Association, Inc. (‘CompTIA’);

–        DMDsecure.com BV, MPS Broadband AB, Pace Micro Technology plc, Quantel Ltd and Tandberg Television Ltd (‘DMDsecure and Others’);

–        Association for Competitive Technology, Inc. (‘ACT’);

–        TeamSystem SpA and Mamut ASA;

–        Exor AB.

63      By the same order, the President of the Fourth Chamber of the Court granted the following associations and companies leave to intervene in the proceedings in support of the form of order sought by the Commission:

–        Software & Information Industry Association (‘SIIA’);

–        Free Software Foundation Europe eV (‘FSFE’);

–        Audiobanner.com, trading as ‘VideoBanner’;

–        RealNetworks, Inc.

64      By letters of 13 December 2004, 9 March, 27 June and 9 August 2005, Microsoft requested that certain confidential matters in the application, the defence, the reply, Microsoft’s observations on the statements in intervention and the rejoinder not be communicated to the interveners. The applicant produced a non-confidential version of those procedural documents and only those non-confidential texts were furnished to the interveners referred to in paragraphs 62 and 63 above. Those interveners raised no objections in that regard.

65      The interveners referred to in paragraphs 62 and 63 above lodged their own statements in intervention within the prescribed period. The main parties submitted their observations on those statements in intervention on 13 June 2005.

66      By order of 28 April 2005 in Case T‑201/04 Microsoft v Commission [2005] ECR II‑1491, the President of the Fourth Chamber granted the European Committee for Interoperable Systems (ECIS) leave to intervene in the proceedings in support of the form of order sought by the Commission. As that association’s application to intervene was lodged after expiry of the period referred to in Article 116(6) of the Rules of Procedure of the Court, it was ordered to submit its observations during the oral procedure, on the basis of the Report for the Hearing, with which it was provided.

67      By decision of the Plenary Conference of 11 May 2005, the case was referred to the Fourth Chamber, Extended Composition, of the Court of First Instance.

68      By decision of the Plenary Conference of 7 July 2005, the case was referred to the Grand Chamber of the Court of First Instance and assigned to a new Judge-Rapporteur.

69      By order of the President of the Grand Chamber of 16 January 2006, RealNetworks was removed from the case as intervener in support of the form of order sought by the Commission.

70      On 1 February 2006, the parties were invited by the Court to attend an informal meeting before the President of the Grand Chamber and the Judge-Rapporteur with a view to finalising the arrangements for the hearing. That meeting took place at the Court on 10 March 2006.

71      Upon hearing the Judge-Rapporteur, the Court of First Instance (Grand Chamber) decided to open the oral procedure and, pursuant to Article 64 of its Rules of Procedure, invited the main parties to produce certain documents and to answer a series of questions. They complied with those requests within the prescribed period.

72      The parties presented oral argument and their answers to the questions put by the Court at the hearing on 24, 25, 26, 27 and 28 April 2006.

73      At the hearing, Microsoft was requested by the Court to lodge a copy of the requests for information sent by the Commission in connection with the 2003 market enquiry, concerning the question of media players, and of the answers to those requests for information, and also of the reports containing the results and analysis of the surveys conducted by Mercer (‘the Mercer reports’). Microsoft produced those various documents within the prescribed periods.

74      By letter from the Court of 3 May 2006, Microsoft was requested to produce a copy of the other requests for information issued by the Commission in connection with the 2003 market enquiry and of the replies to those requests. Microsoft complied with that request within the prescribed period.

75      The President of the Grand Chamber closed the oral procedure by decision of 22 June 2006.

Forms of order sought by the parties

76      Microsoft claims that the Court should:

–        annul the contested decision;

–        in the alternative, annul or substantially reduce the fine;

–        order the Commission to pay the costs;

–        order SIIA, FSFE and Audiobanner.com to pay the costs relating to their intervention.

77      The Commission contends that the Court should:

–        dismiss the action;

–        order Microsoft to pay the costs.

78      CompTIA, ACT, TeamSystem and Mamut claim that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

79      DMDsecure and Others claim that the Court should:

–        annul Article 2(b), Article 4, Article 6(a) and Article 7 of the contested decision;

–        order the Commission to pay the costs.

80      Exor claims that the Court should:

–        annul Articles 2 and 4, Article 6(a) and Article 7 of the contested decision;

–        order the Commission to pay the costs.

81      SIIA, FSFE, Audiobanner.com and ECIS contend that the Court should:

–        dismiss the action;

–        order Microsoft to pay the costs.

Law

82      It is appropriate to examine, first of all, the pleas relating to the forms of order seeking annulment of the contested decision and, next, those relating to the forms of order seeking annulment or a reduction of the fine.

I –  Forms of order seeking annulment of the contested decision

83      The pleas in law which Microsoft puts forward in support of its application for annulment of the contested decision are centred on three issues, namely, first, the refusal to supply and authorise the use of interoperability information; second, the tying of the Windows client PC operating system and Windows Media Player; and, third, the obligation to appoint an independent monitoring trustee responsible for ensuring that Microsoft complies with the contested decision.

A –  Preliminary issues

84      In its written pleadings, the Commission raises a number of issues relating to the extent of review by the Community Courts and the admissibility of a number of annexes to the application and the reply.

1.     The extent of review by the Community Courts

85      The Commission claims that the contested decision rests on a number of considerations involving complex technical and economic assessments. It submits that, according to the case-law, the Community Courts can carry out only a limited review of such assessments (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 13; Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 279; and Case T‑28/03 Holcim (Deutschland) v Commission [2005] ECR II‑1357, paragraphs 95, 97 and 98).

86      Microsoft, citing by way of example Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 43, responds that the Community Courts do not refrain from ‘conducting searching inquiries into the soundness of the Commission’s decisions, even in complex cases’.

87      The Court observes that it follows from consistent case-law that, although as a general rule the Community Courts undertake a comprehensive review of the question as to whether or not the conditions for the application of the competition rules are met, their review of complex economic appraisals made by the Commission is necessarily limited to checking whether the relevant rules on procedure and on stating reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers (Case T‑65/96 Kish Glass v Commission [2000] ECR II‑1885, paragraph 64, upheld on appeal by order of the Court of Justice in Case C‑241/00 P Kish Glass v Commission [2001] ECR I‑7759; see also, to that effect, with respect to Article 81 EC, Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 34, and Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 62).

88      Likewise, in so far as the Commission’s decision is the result of complex technical appraisals, those appraisals are in principle subject to only limited review by the Court, which means that the Community Courts cannot substitute their own assessment of matters of fact for the Commission’s (see, as regards a decision adopted following complex appraisals in the medico-pharmacological sphere, order of the President of the Court of Justice in Case C‑459/00 P(R) Commission v Trenker [2001] ECR I‑2823, paragraphs 82 and 83; see also, to that effect, Case C‑120/97 Upjohn [1999] ECR I‑223, paragraph 34 and the case-law cited; Case T‑179/00 A. Menarini v Commission [2002] ECR II‑2879, paragraphs 44 and 45; and Case T‑13/99 Pfizer Animal Health v Council [2002] ECR II‑3305, paragraph 323).

89      However, while the Community Courts recognise that the Commission has a margin of appreciation in economic or technical matters, that does not mean that they must decline to review the Commission’s interpretation of economic or technical data. The Community Courts must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, to that effect, concerning merger control, Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, paragraph 39).

90      It is in the light of those principles that the Court must examine the various pleas which Microsoft puts forward in support of its application for annulment of the contested decision.

2.     Admissibility of the content of certain annexes

91      The Commission, supported on this point by SIIA, claims that in a number of annexes to the application and to the reply Microsoft relies on arguments not found in the actual body of those pleadings. On various occasions, moreover, Microsoft makes a general reference to reports annexed to its pleadings. The Commission further criticises the fact that certain expert opinions produced by Microsoft are based on information to which neither the Commission nor the Court had access, and contends that the Court cannot take account of those arguments, reports or expert opinions.

92      Microsoft asserts that the ‘relevant passages of [the] application’ contain the essential matters of fact and of law on which the action is based. According to the case-law, specific points in the text of the application can be supported and completed by references to specific passages in documents attached (order in T‑56/92 Koelman v Commission [1993] ECR II‑1267, paragraph 21). Furthermore, the applicant submits that it took a deliberate decision to limit the number of annexes as it did not wish to make the file too bulky, that it is under no obligation to submit every document referred to in the footnotes in its annexes, that the Commission has copies of all the documents lodged during the administrative procedure and that it cannot be disputed that Microsoft is entitled to provide information to its experts.

93      At the informal meeting of 10 March 2006 (see paragraph 70 above), the Judge-Rapporteur drew Microsoft’s attention to the fact that in certain annexes to its pleadings it seemed to rely on arguments not expressly set out in the actual body of those pleadings and questioned Microsoft on that point. As recorded in the minutes of that meeting, Microsoft replied that it was not ‘claiming reliance on arguments … which would not be expressly referred to in the application or in the reply’.

94      The Court recalls that, under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, each application is required to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. According to consistent case-law it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (Case C‑52/90 Commission v Denmark [1992] ECR I‑2187, paragraph 17; orders in Koelman v Commission, paragraph 92 above, paragraph 21, and Case T‑154/98 Asia Motor France and Others v Commission [1999] ECR II‑1703, paragraph 49). Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (Case T‑84/96 Cipeke v Commission [1997] ECR II‑2081, paragraph 34, and Case T‑231/99 Joynson v Commission [2002] ECR II‑2085, paragraph 154).

95      That interpretation of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance also applies to the conditions for admissibility of a reply, which according to Article 47(1) of the Rules of Procedure is intended to supplement the application (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraph 40, not set aside on that point by the Court of Justice, on appeal, in Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375).

96      In the present case, the Court finds that in a number of documents annexed to the application and the reply, Microsoft puts forward legal or economic arguments not limited to supporting or supplementing matters of fact or of law expressly set out in the body of those procedural documents, but which introduce fresh arguments.

97      Furthermore, on a number of occasions Microsoft supplements the text of the application and of the reply on specific points by references to attached documents. However, certain of those references to an attached document are in general terms and therefore do not permit the Court to identify precisely the arguments that might be regarded as supplementing the pleas in law developed in the application or in the reply.

98      The Court notes, however, that while the Commission considers that there is no need to take account of the developments in those various annexes, it none the less comments on those developments in notes annexed to its own pleadings.

99      In accordance with the case-law referred to at paragraphs 94 and 95 above and with Microsoft’s statement at the informal meeting of 10 March 2006 (see paragraph 93 above), the annexes referred to at paragraphs 96 to 98 above will be taken into consideration by the Court only in so far as they support or supplement pleas or arguments expressly set out by Microsoft or the Commission in the body of their pleadings and in so far as it is possible for the Court to determine precisely what are the matters they contain that support or supplement those pleas or arguments.

100    As regards the Commission’s criticisms of the fact that Microsoft has not provided the information underlying certain expert opinions attached to its pleadings, it is sufficient to state that it is for the Court to appraise, where necessary, whether the assertions in those opinions are without probative value. If, in the absence of access to certain information, the Court should consider that those assertions do not have sufficient probative value, it will not take them into account.

B –  The refusal to supply and to authorise the use of interoperability information

101    In this first issue, Microsoft relies on a single plea alleging infringement of Article 82 EC. This plea may be broken down into three parts. In the first part, Microsoft claims that the criteria which permit an undertaking in a dominant position to be compelled to grant a licence, as defined by the Community judicature, are not satisfied in this case. In the second part, Microsoft claims that Sun did not request access to the ‘technology’ that the Commission ordered Microsoft to disclose and that the letter of 6 October 1998 cannot in any event be interpreted as containing an actual refusal on its part. Last, in the third part, Microsoft claims that the Commission does not properly take account of the obligations imposed on the Communities by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994 (Annex 1 C to the Agreement Establishing the World Trade Organisation (WTO)) (‘the TRIPS Agreement’).

1.     First part: the criteria on which an undertaking in a dominant position may be compelled to grant a licence, as defined by the Community judicature, are not satisfied in the present case

a)     Introduction

102    It may be useful first in this place to give a general outline of the positions taken by the main parties on the issue of the refusal to supply and authorise the use of interoperability information.

103    According to the contested decision, Microsoft abused its dominant position on the client PC operating systems market by refusing, first, to supply Sun and other competitors with the specifications for protocols implemented in Windows work group server operating systems and used by the servers running those systems to deliver file and print services and group and user administration services to Windows work group networks and, second, to allow those various undertakings to use those specifications in order to develop and market work group server operating systems.

104    The Commission contends that the information to which Microsoft refuses access is interoperability information within the meaning of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (OJ 1991 L 122, p. 42). It claims, in particular, that that directive envisages interoperability between two software products as being the ability for them to exchange information and mutually to use that information in order to allow each of those software products to operate in all the ways contemplated (see, in particular, paragraph 256 of the first statement of objections, paragraph 79 of the second statement of objections and paragraph 143 of the third statement of objections). The Commission maintains that the concept of interoperability which Microsoft advocates is inaccurate (recitals 749 to 763 to the contested decision).

105    The Commission finds, on the basis of a series of factual and technical factors, that ‘the proper functioning of a Windows work group network relies on an architecture of client/server and server/server interconnections and interactions, which ensures a transparent access to the core work group server services (for Windows 2000/Windows 2003, this “Windows domain architecture” can be termed an “Active Directory domain architecture”)’ and that ‘[t]he common ability to be part of that architecture is an element of compatibility between Windows client PCs and Windows work group servers’ (recital 182 to the contested decision). The Commission describes that compatibility in terms of ‘interoperability with the Windows domain architecture’ (recital 182 to the contested decision) and maintains that such interoperability is ‘necessary for a work group server operating system vendor in order to viably stay on the market’ (recital 779 to the contested decision).

106    The Commission further contends that in order that Microsoft’s competitors can develop work group server operating systems capable of achieving such a degree of interoperability when the servers on which they are installed are added to a Windows work group, it is essential that they have access to information relating to interoperability with the Windows domain architecture (recitals 183 and 184 to the contested decision). It maintains, in particular, that none of the five methods described by Microsoft of ensuring interoperability between operating systems supplied by different vendors constitutes a sufficient substitute for the disclosure of that information (recitals 666 to 687 to the contested decision).

107    Last, the Commission asserts that, according to the case-law, while undertakings are, as a rule, free to choose their business partners, under certain circumstances a refusal to supply by an undertaking in a dominant position may constitute an abuse of a dominant position within the meaning of Article 82 EC. It maintains that the present case presents a number of ‘exceptional circumstances’ which show that Microsoft’s refusal to supply was an abuse, even on the strictest hypothesis – and therefore the one most favourable to Microsoft – that the refusal is regarded as a refusal to supply to third parties a licence relating to intellectual property rights (recitals 190 and 546 to 559 to the contested decision). The Commission maintains that it is entitled to take account of ‘exceptional circumstances’ other than those identified by the Court of Justice in Joined Cases C‑241/91 P and C‑242/91 P RTE and ITP v Commission [1995] ECR I‑743 (‘Magill’) and approved by the Court of Justice Case C‑418/01 IMS Health [2004] ECR I‑5039, but that in any event those exceptional circumstances are present in this case.

108    Microsoft has argued since the beginning of the administrative procedure that the concept of interoperability employed by the Commission in the present case is not consistent with the concept of ‘full interoperability’ envisaged by Directive 91/250 and that it does not correspond to the way in which undertakings organise their computer networks in practice (see, in particular, paragraphs 151 to 157 of the response of 16 November 2001 to the second statement of objections and pages 29 and 30 of the response of 17 October 2003 to the third statement of objections). It claims, in particular, that ‘full interoperability is available to a developer of server operating systems when all the functionality of his program can be accessed from a Windows client operating system’ (paragraph 143 of the response of 17 November 2000 to the first statement of objections; see also, to the same effect, pages 29 and 63 of the response of 17 October 2003 to the third statement of objections). Microsoft thus adopts what the Commission describes as a ‘one-way’ definition, whereas the Commission relies on a ‘two-way relationship’ (recital 758 to the contested decision).

109    In Microsoft’s submission, the full interoperability referred to above may be achieved through the disclosure of interface information which it already provides, notably by its ‘MSDN’ product or the conferences which it organises for ‘Professional Developers’ or through certain other methods available on the market (see, in particular, paragraphs 12, 57 to 63, 73 to 83 and 147 of the response of 17 November 2000 to the first statement of objections; paragraphs 6, 72, 94 to 96, 148 and 149 of the response of 16 November 2001 to the second statement of objections; and page 31 of the response of 17 October 2003 to the third statement of objections).

110    Microsoft claims that the Commission’s concept of interoperability means, on the other hand, that its competitors’ operating systems must function in every respect as a Windows server operating system. That situation could be achieved only if those competitors were allowed to ‘clone’ its products, or some of their features, and if information on the internal mechanisms of its products were communicated to those competitors (see, in particular, paragraphs 7, 20, 27, 144 to 150 and 154 to 169 of the response of 17 November 2000 to the first statement of objections; paragraphs 158 to 161 of the response of 16 November 2001 to the second statement of objections; and pages 10 and 20 of the response of 17 October 2003 to the third statement of objections).

111    Microsoft maintains that a requirement that it disclose such information would amount to an interference with the free exercise of its intellectual property rights and with its incentive to innovate (see, in particular, paragraphs 162, 163 and 176 of the response of 16 November 2001 to the second statement of objections and pages 3, 10 and 11 of the response of 17 October 2003 to the third statement of objections).

112    Last, Microsoft submits that the present case must be appraised in the light of Magill and IMS Health, paragraph 107 above, since the refusal must be analysed as a refusal to grant third parties a licence relating to intellectual property rights and because, accordingly, the contested decision implies compulsory licensing. It maintains, however, that none of the criteria which in its submission were exhaustively accepted by the Court of Justice in those judgments is satisfied in the present case. Microsoft concludes that the refusal at issue cannot be characterised as abusive and that the Commission cannot therefore order it to disclose the interoperability information. In the alternative, Microsoft relies on Case C‑7/97 Bronner [1998] ECR I‑7791 and submits that the criteria laid down in that judgment are not satisfied in the present case either.

113    In the second place, it is appropriate to describe the way in which Microsoft structures its argument in the first part of the plea and the way in which the Court will examine that argument.

114    Thus, before developing its actual reasoning (see title (d) of the first part, below), Microsoft puts forward a number of considerations concerning interoperability, which may be summarised as follows. First, it claims that there are five methods of achieving interoperability between Windows client PC and server operating systems and competing server operating systems. Second, it criticises the degree of interoperability required by the Commission in the present case (and claims, in essence, that the Commission’s real intention is to allow Microsoft’s competitors to ‘clone’ its own products or certain of their features) and also the scope of the remedy prescribed in Article 5 of the contested decision.

115    In addition to those various considerations, Microsoft puts forward a series of arguments in order to demonstrate that the communication protocols which it is required to disclose to its competitors pursuant to the contested decision are technologically innovative and that those protocols, or their specifications, are covered by intellectual property rights.

116    Microsoft’s actual reasoning in the first part of this plea may be set out as follows:

–        the present case must be appraised in the light of the various circumstances recognised by the Court of Justice in Magill, paragraph 107 above, and approved in IMS Health, paragraph 107 above;

–        the circumstances in which a refusal by an undertaking in a dominant position to grant third parties a licence covering intellectual property rights may be characterised as abusive are, first, where the product or service concerned is indispensable for carrying on a particular business; second, where the refusal is liable to exclude all competition on a secondary market; third, where the refusal prevents the emergence of a new product for which there is potential consumer demand; and, fourth, where the refusal is not objectively justified;

–        none of those four circumstances is present in this case;

–        as a subsidiary point, the criteria applicable are those recognised by the Court of Justice in Bronner, paragraph 112 above, which correspond to the first, second and fourth circumstances referred to above and identified in Magill and IMS Health, paragraph 107 above;

–        nor, accordingly, is any of the three Bronner criteria, paragraph 112 above, satisfied in the present case.

117    The Court will begin by examining Microsoft’s allegations concerning the varying degrees of interoperability and the scope of the remedy prescribed in Article 5 of the contested decision. The applicant’s arguments relating to the existence of five methods of achieving interoperability between its operating systems and its competitors’ systems will be analysed when the Court examines what is claimed to be the indispensable nature of the interoperability information. The Court will then deal with Microsoft’s arguments concerning the intellectual property rights which in its submission cover its communication protocols or the specifications for those protocols. Finally, the Court will appraise the actual reasoning which Microsoft develops in the first part of the plea and determine, first, the circumstances by reference to which Microsoft’s impugned conduct must be analysed and, second, whether those circumstances are present in this case.

b)     The varying degrees of interoperability and the scope of the remedy prescribed in Article 5 of the contested decision

Arguments of the parties

118    Microsoft maintains, in essence, that the concept of interoperability on which the Commission bases its conclusion that the refusal to supply interoperability information constitutes an abuse of a dominant position and which serves as the basis for the remedy prescribed in Article 5 of the contested decision is incorrect.

119    Microsoft emphasises that ‘interoperability occurs along a continuum’ and that ‘it is not an absolute standard’.

120    While ‘[t]here may well be a minimum level of interoperability that is required for effective competition’, that level is not difficult to achieve and there are various ways to achieve interoperability in the sense of ‘having operating systems supplied by different vendors work well together’.

121    Microsoft contends that in the contested decision the Commission adopts a wholly different concept of interoperability from the one set out in Directive 91/250 and used in practice by undertakings when they organise their computer networks. The Commission imagines that it is possible for a server operating system produced by one of Microsoft’s competitors to ‘function in all respects’ like a Windows server operating system (that is to say, to achieve ‘perfect substitutability’ or ‘plug replaceability’). In fact, that level of interoperability could be achieved only if Microsoft’s competitors were authorised to ‘clone’ its products or certain features of those products. Two server operating systems are able to interoperate in the sense of exchanging information with each other or providing services to each other without necessarily having to be ‘exactly the same’. It is thus important to distinguish the concept of ‘interoperability’ from the concepts of ‘cloning’ or ‘duplication’.

122    In support of its assertions, Microsoft refers to a report by two computer experts which it had attached to its response of 16 November 2001 to the second statement of objections, in which those experts explain the concepts of ‘tight coupling’ and ‘loose coupling’ and also explain why efforts to achieve ‘tight coupling’ with software products from different designers have failed (annex A.9.2 to the application). Those efforts have failed for both technical and business reasons.

123    Microsoft also states that during the administrative procedure it produced 50 statements from undertakings, both public and private, operating in all industry sectors and from what were then the various Member States. In their statements, those undertakings attest to the high level of interoperability between Windows client and server operating systems and its competitors’ server operating systems, due to the use of methods already available on the market. Furthermore, the Mercer reports show that an undertaking’s choice of server operating system is not dictated by concerns about interoperability with Windows client and server operating systems.

124    In the reply, when introducing the reasoning designed to show that its communication protocols are protected by intellectual property rights, and also in its answer to one of the written questions put to it by the Court, Microsoft makes a series of allegations concerning the scope of the remedy prescribed in Article 5 of the contested decision. By those allegations, Microsoft also raises the question of the level of interoperability required by the Commission in the present case.

125    Thus, in the reply, Microsoft claims that there is an inconsistency between the remedy and the ‘standard of interoperability’ employed by the Commission in the contested decision for the purpose of assessing the relevance of the ‘alternative means of interoperability’. In its answer to one of the written questions put by the Court, Microsoft asserts that the scope of the disclosure obligation prescribed by Article 5 of the contested decision has been given different interpretations by the Commission.

126    On that last point, Microsoft observes that, at recital 669 to the contested decision, the Commission states that ‘open industry standards fall short of enabling competitors to achieve the same degree of interoperability with the Windows domain architecture as Windows work group server operating systems do’. Microsoft also observes that, at recital 679 to the contested decision, the Commission states that ‘Novell’s “clientless” work group server operating systems cannot use the full capabilities of the Windows client PCs and work group servers in the same way that [Windows] work group server operating systems can’. Microsoft concludes from those statements that the Commission initially envisaged interoperability as being the capability for its competitors to make their products work in exactly the same way as Windows server operating systems. The Commission thus envisages that there be a quasi identity between Windows server operating systems and its competitors’ server operating systems.

127    In order for the degree of interoperability thus advocated by the Commission to be achieved (a degree which Microsoft refers to variously as ‘plug replacement’, ‘plug-replaceability’, ‘drop-in’, ‘functional equivalent’ and ‘functional clone’), Microsoft would have to disclose much more information than that referred to in Article 5 of the contested decision, notably information on the internal mechanisms of its server operating systems (including ‘algorithms and decision rules’).

128    Microsoft submits that the Commission adopted a second approach and advocated a narrow interpretation of Article 5, taking the view that that article required the applicant to license to its competitors only ‘on the wire’ communication protocols. In support of that assertion, Microsoft relies on the fact that at the hearing in the interim measures proceedings the parties which had then been granted leave to intervene in support of the form of order sought by the Commission stated that they were not interested in obtaining access to information about the internal mechanisms of the Windows server operating systems. Furthermore, the Commission confirmed in the defence and the rejoinder that it did not propose to allow Microsoft’s competitors to ‘clone’ the file and print services or group and user administration services delivered by the Windows server operating systems. However, the thousands of pages of specifications which Microsoft communicated to the Commission pursuant to the contested decision will none the less allow its competitors to copy certain ‘features’ of its products that it developed through its own research and development efforts. Thus, for example, by having access to the DRS (Directory Replication Service) protocol, third parties would be able to reverse-engineer other parts of the Windows server operating system that use Active Directory.

129    Taking a third approach, in October 2005, and thus several months after the closure of the written procedure in the present case, the Commission again interpreted Article 5 of the contested decision as meaning that the information that Microsoft was to disclose must allow its competitors to create ‘functional equivalents’ of the Windows server operating systems or, in other words, systems that were ‘perfectly substitutable’ for those systems. Microsoft again asserts that such an interpretation of Article 5 requires that it give access to information on the internal mechanisms of its Windows server operating systems.

130    At the hearing, Microsoft discussed the ‘multimaster replication’ mechanism at length and, in that context, submitted arguments to the same effect as those set out above.

131    Microsoft explained that in the past directory services were executed by a single server which was very large and very expensive. Nowadays those services are generally carried out by a multitude of small, less expensive servers situated in different places and linked in an ensemble which Microsoft illustrated on various slides shown at the hearing by a ‘blue bubble’. Microsoft submitted that the software installed on the servers forming part of that ‘blue bubble’ and involved in supplying directory services must share the same internal logic so that the servers are able to work together as though they were a single unit. Each of those servers must, in effect, presume that the others will react in exactly the same way in response to a given request. Furthermore, the communications between servers operating under a given operating system within the ‘blue bubble’ are of a very special nature.

132    The multimaster replication mechanism allows any change made to the data contained on a server acting as a domain controller within the ‘blue bubble’ (for example, a change in a user’s password) to be automatically replicated on all the other servers acting as domain controller and belonging to the same ‘blue bubble’.

133    The first company to succeed in developing such a mechanism was Novell, in 1993. However, the mechanism in its NetWare server operating system allows only a maximum of 150 domain controllers to function in a perfectly synchronised manner within a ‘blue bubble’, whereas the mechanism used by Active Directory in the Windows 2000 Server system can deal with several thousand domain controllers simultaneously.

134    With further reference to the multimaster replication mechanism, Microsoft reiterated that the contested decision was designed to allow its competitors to develop server operating systems containing ‘functional equivalents’ of its own Windows server operating systems. The decision intended, in particular, that servers implementing directory services on which a non-Microsoft server operating system is installed would be able to replace, within a ‘blue bubble’, existing servers on which a Windows server operating system using Active Directory is installed. In order for such a result to be capable of being achieved, however, non-Microsoft server operating systems would have to function in exactly the same way – and therefore share the same internal logic – as Windows server operating systems using Active Directory. That would be possible only if Microsoft’s competitors had information relating to the internal mechanisms of its server operating systems, including certain algorithms, namely information going well beyond interoperability information within the meaning of the contested decision.

135    Multimaster replication could not therefore intervene between servers operating under operating systems from different suppliers. For example, a server on which a Sun operating system is installed could not be placed within a ‘blue bubble’ containing servers operating under a Novell operating system or using Active Directory. Microsoft explained, however, that since Active Directory relies on standard protocols such as LDAP (Lightweight Directory Access Protocol), it is capable of functioning, within the same computer network, with the directory services provided by its competitors’ server operating systems. It makes no difference whether that interoperability operates between two separate servers or between one server and a group of servers within a ‘blue bubble’.

136    The Commission rejects Microsoft’s claims.

137    It begins by referring to the definition of ‘interoperability information’ and ‘protocols’ in Article 1(1) and (2) of the contested decision. According to the decision, Microsoft is required to provide technical documentation, called ‘specifications’, which describes those protocols in detail. The specifications show ‘how to format the messages, when to originate them, how to interpreter them, cope with incorrect messages, etc.’. It is essential to distinguish that technical documentation from the source code of Microsoft’s products, and a competitor wishing to write a server operating system which ‘understands’ Microsoft’s protocols will have to ensure that its product includes source code that implements the protocol specifications. However, two programmers implementing the same protocol specifications will not write the same source code and their programs will perform differently (recitals 24, 25, 698 and 719 to 722 to the contested decision). From that point of view, protocols may be compared with a language whose syntax and vocabulary are the specifications, in so far as the mere fact that two persons learn the syntax and vocabulary of the same language does not guarantee that they will use it in the same way. Furthermore, ‘the fact that two products provide their services through compatible protocols says nothing about how they provide the services’.

138    The Commission asserts that Microsoft advocates a narrow definition of the concept of interoperability, and one that is incompatible with Directive 91/250. It refers to recitals 749 to 763 to the contested decision and observes that Microsoft adduces no new argument by comparison with the assertions already made during the administrative procedure. At the hearing, the Commission stated that it had relied on that directive not only in order to demonstrate the importance of interoperability in the software sector, but also for the purpose of appraising the concept of interoperability.

139    The Commission also recognises that there is a whole range of possible degrees of interoperability between PCs running Windows and work group server operating systems and that ‘some interoperability’ with the Windows domain architecture is already possible. It did not fix a priori a given level of interoperability which is indispensable to the maintenance of effective competition on the market but, following its investigation, it established that the degree of interoperability that competitors could achieve using the available methods was too low to enable them to remain viably on the market. The Commission refers to the section of the contested decision in which it shows that ‘interoperability is the key factor driving the uptake of Microsoft’s work group server operating systems’ (recitals 637 to 665 to the contested decision) and observes that it became apparent that those methods ‘did not permit the level of interoperability required by customers [to be achieved] in an economically viable manner’.

140    In the rejoinder, the Commission contends that, in the contested decision, it does not conclude that it is indispensable that Microsoft’s competitors be allowed to reproduce its ‘interoperability solutions’. What matters is that they are able to achieve an equivalent degree of interoperability by their own innovative efforts.

141    Last, the Commission submits that, contrary to Microsoft’s contention, the contested decision is not designed to enable non-Microsoft server operating systems to function in all respects like a Windows server operating system and, consequently, to permit its competitors to ‘clone’ the features of its products. The contested decision is in fact intended to enable those competitors to develop products which ‘w[ould] function differently [but would be] able to understand the messages conveyed by Microsoft’s relevant products’. Furthermore, the interoperability information that Microsoft must disclose to its competitors under the contested decision will not enable them to create exactly the same products as Microsoft’s products.

142    On that point, the Commission stated at the hearing that it was necessary to distinguish the concept of ‘functional equivalent’ from that of ‘functional clone’. A ‘functional equivalent’ is not a system operating identically to the Windows work group server operating system which it replaces but rather a system that can provide the appropriate response to a specific request under the same conditions as that Windows operating system and can make a Windows client PC or server react to its messages in the same way as if they came from that Windows operating system.

143    The Commission submits that ‘tight coupling’ and ‘loose coupling’ are not clearly-defined technical terms, especially in the field of operating systems software. In any event, it does not agree that the ‘tightly-coupled interface details’ referred to in the report in annex A.9.2 are innovative.

144    The Commission has already discussed the customer statements submitted by Microsoft during the administrative procedure, at recitals 357, 358, 440 to 444, 511, 513, 595, 602, 628 and 707 to the contested decision. Those statements, which date back to 2000 and 2001, relate in essence to undertakings which had to a large extent adopted Windows as the ‘standard’ for their work group networks. As for the Mercer reports, the Commission submits that it has already stated at recital 645 to the contested decision that the data analysed in those reports suggest precisely the opposite of what Microsoft claims.

145    The Commission proceeds to reject the argument which Microsoft derives from the alleged inconsistency between the remedy prescribed in Article 5 of the contested decision and the standard of interoperability used in the decision to appraise the relevance of the ‘alternative means of interoperability’.

146    The Commission professes to find it difficult to understand the meaning of that argument. In the excerpts from recitals 669 and 679 to the contested decision which Microsoft cites, the Commission does not reject certain alternatives to disclosure of interoperability information on the ground that those alternatives do not permit the ‘cloning’ of Microsoft’s products, or certain features of those products, but merely notes that those alternatives ‘provide a lesser degree of interoperability with Microsoft’s dominant products (a lesser ability to access the features of [those] products) than Microsoft’s own offering enjoys’. What is at stake, therefore, is the ability to ‘work with’ the Windows environment.

147    It is clear from recitals 568 to 572, 740 and 749 to 763 to the contested decision, moreover, that the decision concerns only disclosure of interface specifications. Microsoft does not substantiate to the requisite legal standard its assertion that, by having access to its communication protocols specifications, third parties would be able to reverse engineer other parts of the Windows server operating system that use Active Directory.

148    At the hearing, the Commission disputed the merits of the assertions which Microsoft made on the basis of the multimaster replication mechanism. It confirmed that the contested decision was intended to ensure, in particular, that servers running a work group server operating system produced by one of Microsoft’s competitors would be able to form part of a ‘blue bubble’ consisting of servers on which a Windows work group server operating system is installed and that, accordingly, the disclosure obligation prescribed in Article 5 of the contested decision would also cover information on communications between servers within that ‘blue bubble’. However, it rejected Microsoft’s assertion that that purpose could be achieved only by providing access to information on the internal mechanisms of its products.

149    SIIA emphasises the crucial role that interoperability plays in the software sector. There is no doubt that consumers place great significance on the fact that computer programs are interoperable with the quasi-monopolistic products represented by Windows client PC operating systems. In normal competitive circumstances, software developers have every incentive to favour interoperability between their products and their competitors’ products and to disclose interoperability information. They thus compete on the basis of ‘normal’ factors such as price and product security, processing speed or innovative functionality. Microsoft, on the other hand, uses its quasi-monopoly position on certain markets to leverage that position into adjacent markets. More specifically, Microsoft restricts its competitors’ capacity to achieve interoperability with its ‘quasi-monopolistic’ products by failing to comply with industry standard protocols, by making ‘minor (and unnecessary) additions’ to them and by then refusing to disclose information about those ‘extended protocols’ to its competitors.

150    SIIA also disputes Microsoft’s assertion that the contested decision seeks to allow Microsoft’s competitors to develop server operating systems that function in all respects like a Windows server operating system. The purpose of the contested decision is to allow non-Microsoft work group server operating systems to interoperate with Windows client PC and work group server operating systems in the same way as Windows work group server operating systems do.

Findings of the Court

151    In the various arguments set out at paragraphs 118 to 135 above, Microsoft raises two main issues: first, the degree of interoperability required by the Commission in the present case; and, second, the scope of the remedy prescribed in Article 5 of the contested decision.

152    Those two issues are intrinsically linked, since, as is apparent in particular from recital 998 to the contested decision, the purpose of the remedy is to require Microsoft to disclose what in the Commission’s contention it has abusively refused to disclose, and to disclose it both to Sun and to its other competitors. The scope of the remedy must therefore be assessed in the light of the abusive conduct in which Microsoft is found to have engaged, which depends in particular on the degree of interoperability envisaged by the Commission in the contested decision.

153    For the purpose of deciding those issues, the Court will begin by reviewing a series of factual and technical findings made in the contested decision. It was on the basis of its examination of, in particular, the way in which Windows work group networks are organised and the links between the various operating systems within those networks that the Commission evaluated the degree of interoperability required in the present case and thus concluded that access to the interoperability information was indispensable. The Court will also define at the outset the nature of the information at which the contested decision is directed.

–       Factual and technical findings

154    At recitals 21 to 59, 67 to 106 and 144 to 184 to the contested decision, the Commission makes a series of factual and technical findings concerning the products and technologies concerned.

155    The Court notes at the outset that Microsoft does not, in effect, dispute those various findings. To a large extent, moreover, they are based on statements made by Microsoft during the administrative procedure (especially in its responses to the three statements of objections) and also on documents and reports published on its Internet site. Furthermore, the technical presentations by the parties’ experts at the hearing, including Microsoft’s, confirm the substance of those findings.

156    In the first place, the Commission, after observing that the word ‘interoperability’ could be used in different contexts by technicians and lent itself to different uses, cites, first of all, the 10th, 11th and 12th recitals in the preamble to Directive 91/250 (recital 32 to the contested decision).

157    Those recitals read as follows:

‘… the function of a computer program is to communicate and work together with other components of a computer system and with users and, for this purpose a logical and, where appropriate, physical interconnection and interaction is required to permit all elements of software and hardware to work with other software and hardware and with users in all the ways in which they are intended to function;

… the parts of the program which provide for such interconnection and interaction between elements of software and hardware are generally known as “interfaces”;

… this functional interconnection and interaction is generally known as “interoperability”; … such interoperability can be defined as the ability to exchange information and mutually to use the information which has been exchanged.’

158    The Commission then states that Microsoft criticises it for adopting in the present case a concept of interoperability that goes beyond what is contemplated by Directive 91/250. None the less, the Commission and Microsoft are agreed that ‘interoperability is a matter of degree and that various software products in a system “interoperate” (at least partially) when they are able to exchange information and mutually to use the information which has been exchanged’ (recital 33 to the contested decision).

159    In the second place, the Commission observes that nowadays computers increasingly operate in conjunction with other computers in a network. Depending on the specific tasks that they want to carry out, client PC users use both the computing capability of their own client PC and at the same time the capabilities of the various types of more powerful ‘multi-user’ computers, namely ‘servers’, which they access indirectly through their client PCs (recital 47 to the contested decision). In order to ensure easy and efficient access to network ‘resources’, the applications must be distributed across several computers, each of which hosts different components that ‘interoperate’, and the computers linked within the network must be integrated into a consistent ‘distributed computing system’ (recital 48 to the contested decision). Last, ‘[s]uch a system would ideally make the complexity of the underlying hardware and software “transparent” (that is to say, invisible) to the user and distributed applications alike, so that users and applications can easily find their way through this complexity in order to access computing resources’ (recital 48 to the contested decision).

160    In the third place, the Commission emphasises that the present case focuses on ‘work group server services’, namely the basic infrastructure services used by office workers in their day-to-day work (recital 53 to the contested decision). It identifies, more particularly, the following three types of services: first, the sharing of files stored on servers; second, the sharing of printers; and, third, the administration of groups and users. The third type of services involves in particular ensuring secure access to network resources and the secure use of those resources, notably, first by authenticating users and then by checking that they have the right to perform a particular action (recital 54 to the contested decision).

161    Those different services, moreover, are closely interrelated and may in fact to a large extent be regarded as ‘one and the same … service’, but viewed from two different perspectives, namely that of the user (file and print services) and that of the network administrator (group and user administration services) (recitals 56 and 176 to the contested decision). Although Microsoft maintains in its reasoning relating to the elimination of competition that the Commission adopted an ‘artificially narrow’ definition of the relevant product market by including only the three types of services referred to above (see paragraphs 443 to 449 below), it does not dispute the existence of such links between those services.

162    In the light of those factors, the Commission defines ‘work group server operating systems’ as operating systems designed and marketed to deliver file and print services, and also group and user administration services, collectively to relatively small numbers of client PCs linked together in small to medium-sized networks (recitals 53 and 345 to the contested decision). In order to store and query the group and user administration information effectively, those operating systems generally rely on ‘directory service’ technologies (recital 55 to the contested decision).

163    In the fourth place, the Commission examines the way in which interoperability is achieved in ‘Windows work group networks’ (recitals 144 to 184 to the contested decision), namely ‘group[s] of Windows Client PCs [on which a Windows client PC operating system is installed] and Windows Work Group Servers [on which a Windows work group server operating system is installed] linked together via a computer network’ (Article 1(7) of the contested decision).

164    To that end, the Commission focuses on Microsoft’s ‘Windows 2000’ generation of operating systems, while observing that the essential characteristics of those systems are similar to those of the next generation of systems (namely the ‘Windows XP Home Edition’ and ‘Windows XP Professional’ operating systems for client PCs and the ‘Windows 2003 Server’ operating system for servers) (footnote 182 to the contested decision).

165    First, the Commission sets out a series of considerations concerning the group and user administration services (recitals 145 to 157 to the contested decision). Within the Windows work group networks, the ‘Windows domains’ lie at the core of the provision of those services; the Commission characterises those domains as ‘administrative units’ whereby the Windows work group server operating systems administer client PCs and work group servers (recitals 145 and 146 to the contested decision). In particular, each ‘resource’ (computer, printer, user, application, etc.) in a Windows domain has one ‘domain account’, which defines its identity for the whole domain, and within the same Windows domain there is a ‘single user logon’, in the sense that when the user logs on to a domain resource (generally his client PC) he is ‘recognised’ by all the other resources in the same domain and does not need to enter his name and password again (recital 146 to the contested decision).

166    The Commission emphasises the importance of the role played within the Windows domains by servers known as ‘domain controllers’, in contrast to other servers, which are known as ‘member servers’ (recital 147 to the contested decision). Domain controllers are responsible for storing domain accounts and the related information. In other words, they act as ‘switchboard operators’ of the Windows domain (recital 147 to the contested decision).

167    The Commission emphasises, more particularly, the key role played by Active Directory and the changes which the introduction of that ‘full-fledged directory service’ to the Windows 2000 Server operating system has made to the way in which domain controllers relate to each other in Windows 2000 domains by comparison with the earlier Windows operating systems, namely those of the Windows NT generation (recital 149 to the contested decision).

168    The Windows NT 4.0 operating system had primary domain controllers and backup domain controllers. In that system, changes to domain accounts could be made only by the primary domain controller and were then periodically and automatically propagated to all backup domain controllers. In a Windows 2000 domain, on the other hand, all domain controllers operate as ‘peers’, so that it is possible to make changes to domain accounts an any of them, those changes then being automatically propagated to the other domain controllers (recital 150 to the contested decision). Those operations are carried out by means of new synchronisation protocols, which are different from those used by the Windows NT 4.0 operating system.

169    Another new feature of Windows 2000 domains is that they can be organised hierarchically, with ‘trees’ of Windows 2000 domains linked to each other by automatic trust relationships, while several ‘trees’ can then be linked by trust relationships in a ‘forest’ (recital 151 to the contested decision). Windows 2000 domain controllers can be set up as ‘global catalog servers’, which means that they store not only information on the resources available on the domains which they control but also a ‘summary’ of all the resources available in the ‘forest’, namely the ‘Global Catalog’. The data stored in the global catalog are updated by various protocols.

170    The Commission goes on to explain that the move from Windows NT technology to Windows 2000 technology has also entailed changes with respect to the security architecture of Windows work group networks (recitals 152 to 154 to the contested decision). In particular, in the Windows 2000 domain authentication is based on the ‘Kerberos’ protocol and no longer on the NTLM (NT LAN Manager) protocol, which provides a series of advantages as regards connection speed, mutual authentication and trust management. The ‘Key Distribution Centre’ foreseen by the Kerberos protocol ‘is integrated with other Windows 2000 security services running on the domain controller and uses the domain’s Active Directory as its security account database’ (recital 153 to the contested decision). However, the Kerberos protocol implemented in the Windows 2000 Professional and Windows 2000 Server operating systems is not the standard version developed by the Massachusetts Institute of Technology (MIT), but a version ‘extended’ by Microsoft (recitals 153 and 154 to the contested decision).

171    Last, the changes brought about by the move from Windows NT technology to Windows 2000 technology and Active Directory include the fact that a number of functions are integrated both in the Windows 2000 Professional operating system and in the Windows 2000 Server operating system, in order to simplify the administration of Windows client PCs in Windows domains (recitals 155 to 157 to the contested decision). Those functions – the Commission cites, more particularly, the ‘Group Policy’ and ‘Intellimirror’ functions – are ‘significantly enhanced’, or even available solely, in a Windows 2000 domain managed from a Windows 2000 domain controller using Active Directory (recital 156 to the contested decision). The Commission notes that, according to Microsoft, ‘[Group Policy was] a feature of Windows 2000 … that allow[ed] administrators centrally to manage collections of users, computers, applications and other network resources instead of managing [those] objects on a one-by-one basis’. Groups may be defined locally for a given computer or defined for the whole Windows domain, while Intellimirror, which is available only in a Windows 2000 domain, allows users to have their ‘working environment’ (data, software, etc.) available with their personal settings, whether they are connected to the network or not and wherever they are on the network (recital 157 to the contested decision).

172    Second, the Commission sets out a series of considerations concerning file and print services (recitals 158 to 164 to the contested decision).

173    In particular, modern work group server operating systems provide support for ‘distributed file systems’ and at the end of the 1990s Microsoft marketed such a system, called ‘Dfs’ (Distributed File System), in the form of an add-on that could be installed on client and server PCs running Windows NT 4.0. Windows 2000 is the first generation of Microsoft products to include native support for Dfs both on the client PC and the work group server side (recitals 161 to 163 to the contested decision).

174    Under Windows 2000, Dfs may be installed either in ‘stand-alone’ mode or ‘domain-based’ mode, but the latter mode, which provides a number of advantages in terms of ‘intelligent’ retrieval of the Dfs information from client PCs, is available only in Windows domains and is enhanced by the presence of domain controllers running Active Directory (recital 164 to the contested decision).

175    Third, the Commission explains that Microsoft has developed its own set of distributed object-based system technologies, encompassing COM (Component Object Model) and DCOM (Distributed Component Object Model) technologies (recital 166 to the contested decision). Those two technologies are closely interrelated and COM, which is implemented in both Windows client PC operating systems and Windows work group server operating systems, links those two operating systems into a consistent platform for distributed applications (recital 166 to the contested decision). In its response to the third statement of objections, Microsoft stated that ‘COM [was] fundamental to the architecture of Windows operating systems, with the result that many interfaces in Windows [were] COM-based’ (recital 167 to the contested decision). More particularly, many interactions between client PCs and the Active Directory service in Windows work group servers involve COM/DCOM. Furthermore, the ‘DCOM protocol’ is involved in client/server communications whereby Windows servers deliver authentication services or file services to Windows client PCs (recital 167 to the contested decision).

176    Fourth, the Commission explains that in many ways Microsoft encourages ‘natural migration’ from its Windows NT operating systems to its Windows 2000 operating systems, both by its customers and by software developers (recitals 168 to 175 to the contested decision).

177    Thus, in a Windows domain it is possible to ‘upgrade’ computers using previous versions of Windows by having them ‘migrate’ to Windows 2000 without using Active Directory. However, customers can take full advantage of the ‘upgrade’ only by installing a Windows 2000 domain running Active Directory in ‘native mode’, which means that all the domain controllers in the domain concerned ‘migrate’ to Windows 2000 and Active Directory. The work group servers of the domain which do not act as domain controllers must also be compatible with Windows 2000 (which assumes, in particular, that they implement the Kerberos protocol, in the version extended by Microsoft). When a Windows 2000 domain is installed in ‘mixed mode’ (when the primary domain controller has ‘migrated’ to Windows 2000 but some of the backup domain controllers are still running Windows NT), the user does not benefit from all the advanced features of the Windows 2000 domain. In particular, the user must forego most of the additional flexibility that Active Directory brings to the management of groups of users. Once the user switches his primary controller to native mode he can no longer use as a domain controller a server that is interoperable only with the Windows NT 4.0 generation of Microsoft products (including work group servers running non-Microsoft systems).

178    Software developers are strongly encouraged by Microsoft to use the new features of the Windows operating systems, in particular Active Directory, notably by means of the certification programmes which it has set up (recitals 171 to 175 to the contested decision).

179    Fifth, the Commission draws a series of conclusions (recitals 176 to 184 to the contested decision).

180    It reiterates, first of all, that in Windows technologies file and print services and group and user administration are delivered to users of Windows client PCs as a ‘set of interrelated services’. By way of illustration, the Commission states that, in a Windows 2000 domain, ‘the server message block (SMB) client and server underlying [Dfs], [DCOM], LDAP authentication, … all use [Microsoft] Kerberos automatically for authentication’ (recital 176 to the contested decision). Furthermore, besides authentication, the authorisation process depends on the ability to create, modify and interpret ‘Access Control Lists’ (ACL), which involves communication with the domain controllers of the domain (recital 176 to the contested decision).

181    Next, the Commission states that, in order to be able to deliver their services ‘transparently’ to client PC users, Windows work group servers use specific pieces of software code in the Windows client PC operating system (recital 177 to the contested decision). In that regard, the Commission observes, in particular, that Microsoft stated that ‘Dfs [had] a local component that [would] run even if a Windows 2000 Professional client [PC] [was] operating in standalone mode’ and that ‘Windows 2000 Professional contain[ed] a client code that [could] be used to access Active Directory’ (recital 177 to the contested decision). Quoting the author of a work entitled ‘Understanding Active Directory Services’ published by Microsoft Press, the Commission also states that ‘Active Directory is completely – often invisibly – integrated into the [Windows client PC]’ (recital 177 to the contested decision).

182    The Commission emphasises that it is important, however, that the interconnection and interaction involving the Windows 2000 Professional source code should not be viewed solely as being intended to enable a particular Windows work group server to communicate with a particular Windows client PC. It is more accurate to describe that interconnection and that interaction in terms of interoperability within a computer system encompassing several Windows client PCs and several Windows work group servers, all linked together in a network. Interoperability within such a computer system thus has two inseparable components, namely client/server interoperability and server/server interoperability (recital 178 to the contested decision).

183    In many cases, moreover, there is ‘symmetry between server/server and client/server interconnection and interaction’ (recital 179 to the contested decision). The Commission mentions, by way of example, the fact that the same ‘application program interface’ (API), namely ‘ADSI’ (Active Directory Service Interface), is implemented both on Windows 2000 Professional and Windows 2000 Server to handle access to Active Directory domain controllers. A further example given by the Commission is the fact that, in a Windows domain, the Kerberos protocol, as extended by Microsoft, is used for authentication both between a Windows client PC and a Windows work group server and between several Windows work group servers.

184    In certain circumstances, ‘servers will query other servers on behalf of a client PC’ (recital 180 to the contested decision). By way of example, the Commission mentions, in particular, ‘Kerberos delegation’, a functionality present in the Windows 2000 Server operating system which allows a server to borrow the identity of a client PC and to request a service from another server on behalf of that client PC. Thus servers quite frequently address requests to other servers and therefore act as client PCs (see also footnote 51 to the contested decision).

185    Some client/server communications build on the expectation that certain server/server communications have already taken place. In particular, when a client PC running Windows 2000 Professional queries the domain controller in a Windows 2000 domain, the client PC will expect ‘some preparatory coordination to have taken place between the domain controllers running Windows 2000 Server’ (recital 181 to the contested decision). According to the Commission, ‘[that] includes, for example, both the fact that domain controllers will hold a full copy of the Active Directory data, which are kept updated through synchronisation protocols[,] and the fact that Global Catalog servers are able to store information about computers of the forest that are outside their domain, which is possible through various Global Catalog-related products’ (recital 181 to the contested decision). In such a situation, the server/server communication is ‘logically linked’ to the client/server communication, since it occurs in preparation for the client/server communication.

186    It follows from all of the foregoing matters – which Microsoft does not substantially contest and the correctness of which was largely confirmed by the technical presentations made at the hearing – that, as the Commission correctly observes at recital 182 to the contested decision, Windows work group networks rely on an ‘architecture’ of both client/server and server/server interconnections and interactions and that that ‘architecture’ – which the Commission characterises as ‘Windows domain architecture’ – ensures ‘transparent access’ to the main services provided by work group servers.

187    Those various factors also show that, as found at various points in the contested decision (see, in particular, recitals 279 and 689 to the contested decision), those interconnections and interactions are closely interlinked.

188    In other words, the proper functioning of the Windows work group networks relies both on client/server communication protocols – which, by their nature, are implemented both in Windows client PC operating systems and in Windows work group server operating systems – and on server/server communication protocols. As the Commission explained at the hearing, for numerous tasks, server/server communication protocols appear, in fact, as ‘extensions’ of the client/server communication protocols. In certain cases, a server acts as a client PC vis-à-vis another server (see paragraph 184 above). Likewise, while it is true that certain communication protocols are implemented only in Windows work group server operating systems, the fact remains that, from a functional point of view, they are linked to the client PCs. The Commission refers on that point, without being contradicted by Microsoft, to the Global Catalog-related protocols and to the synchronisation and replication protocols between domain controllers.

189    The Court therefore finds that the Commission is quite correct to conclude that ‘the common ability to be part of [the Windows domain architecture] is a feature of compatibility between Windows client PCs and Windows work group servers’ (recital 182 to the contested decision).

190    Finally, it is necessary to bear in mind the major role played by directory services on the work group server operating systems market. Microsoft itself observes in the reply that on that market ‘the directory service is a key competitive feature responsible in large part for the success of particular products’ and emphasises, in particular, that ‘Active Directory is … at the heart of Windows server operating systems’, after stating that ‘[f]or both file and print services and user and group administration services, it [is] important to know with precision which user [is] entitled to access which network resources’.

191    Active Directory logs all network object information and allows it to be administered centrally. It fully integrates administration and user authentication and access control functionalities and thus ensures the security of the information. In addition, Active Directory uses the multi-master replication mechanism.

–       The nature of the information referred to in the contested decision

192    The first abusive conduct in which Microsoft is found to have engaged is its refusal to supply the interoperability information to its competitors and to allow its use for the purpose of developing and distributing work group server operating system products between October 1998 and the date of the contested decision (Article 2(a) of the contested decision).

193    By way of remedy for that refusal, the Commission ordered Microsoft, inter alia (Article 5(a) of the contested decision), to do the following:

‘Microsoft … shall, within 120 days of the date of notification of [the contested 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[.]’

194    It is appropriate to bear in mind the way in which the Commission defined and assessed the principal concepts of relevance to the present issues.

195    Thus, in Article 1(1) of the contested decision, it defines ‘interoperability information’ as ‘the complete and accurate specifications for all the protocols [that are] implemented in Windows work group server operating systems and that are 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’.

196    ‘Protocols’ are described by the Commission as rules of interconnection and interaction between various pieces of software within a network (recital 49 to the contested decision). More specifically, the protocols at issue in the present case 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 contested decision).

197    The Court notes that Microsoft does not contest the Commission’s concept of ‘protocols’. On the contrary, in the application Microsoft itself describes protocols as enabling ‘computers connected via a network to exchange information to accomplish predefined tasks’. Indeed, in a report by one of its experts, Mr Madnick, annexed to the applicant’s observations on the statements in intervention, the applicant draws a distinction between two categories of communication protocols, depending on whether they are ‘simple’ or ‘complex’ and mentions the DRS protocol as coming within the second category (annex I.3 (Madnick, ‘Response to Mr Ronald S. Alepin’s Annex on Interoperability and the FSFE’s Submission’)). However, in making that distinction Microsoft does not seek to challenge the correctness of the definition referred to above, but only to establish that complex protocols govern interactions between various similar elements of a network which deliver a joint service in close coordination and that they ‘reveal’ much more detailed and more valuable information than simple protocols.

198    ‘Specifications’ are not defined in the operative part of the contested decision. However, it is common ground that specifications take the form of detailed technical documentation, which, indeed, reflects the way in which that concept is generally understood in the computer industry.

199    At recital 24 to the contested decision, the Commission states that it is important to distinguish the concept of ‘specifications’ from the concept of ‘implementation’, in the sense that ‘[a] specification is a description of what the software product must achieve, whereas the implementation relates to the actual code that will run on the computer’ (see, to the same effect, recital 570 to the contested decision). In other words, specifications describe the interfaces by means of which a given element of a computer system can use another element of the same system. They describe, in particular, and in a very abstract manner, what functionalities are available and the rules which allow those functionalities to be called up and received.

200    At recital 571 to the contested decision, the Commission states that it is possible to provide interface specifications without disclosing implementation details, and that it is common practice to do so in the computer industry, especially when open interoperability standards are adopted (see also, on that point, recital 34 to the contested decision). In its statement in intervention, SIIA puts forward arguments to the same effect.

201    A number of factors confirm the correctness of those different assertions. First, the practice to which the Commission refers is supported by a set of examples – not disputed by Microsoft – which are mentioned in the contested decision, namely the ‘POSIX 1’ specifications (recitals 42 and 88 to the contested decision), the ‘Java’ specifications (recital 43 to the contested decision), the specifications of the ‘Kerberos version 5’ protocol (recital 153 to the contested decision), the specifications of the ‘NFS’ (Network File System) protocol developed by Sun (recital 159 to the contested decision) and the ‘CORBA’ specifications drawn up by the Object Management Group (recital 165 to the contested decision). Second, as the Commission states at recital 571 to the contested decision, under the MCPP set up pursuant to the United States settlement, licensees are not granted access to Microsoft’s source code, but to specifications of the relevant protocols.

202    Nor does Microsoft call in question, other than quite incidentally, the abovementioned distinction between the concepts of ‘specifications’ and ‘implementation’, as it merely makes a general reference in footnote 74 to the application to an opinion drawn up by its experts Mr Madnick and Mr Nichols, which was submitted to the Commission during the administrative procedure and is annexed to the application (annex A.12.2 to the application). For the reasons stated at paragraphs 94 and 97 above, the Court considers that it cannot take that opinion into account. Furthermore and in any event, the argument in that opinion is largely based on an incorrect premiss, namely, that the degree of interoperability required by the Commission in the present case means that Microsoft’s competitors must be capable of reproducing or ‘cloning’ Microsoft’s products or certain of their functionalities (see paragraphs 234 to 239 below).

203    The Court notes, moreover, that in the contested decision the Commission expressly states that the abusive refusal to supply imputed to Microsoft concerns only the specifications of certain protocols and not the source code (see, in particular, recitals 568 to 572 to the contested decision).

204    To the same effect, the Commission emphasises on a number of occasions that it is not its intention to order Microsoft to disclose its source code to its competitors. Thus, at recital 999 to the contested decision, it states that ‘the term “specifications” makes clear that Microsoft should not be required to disclose its own implementation of [those] specifications, that is to say, its own source code’. Likewise, it observes at recital 1004 to the contested decision that the decision ‘does not contemplate compulsory disclosure of Windows source code as [that] is not necessary to achieve the development of interoperable products’. At the same recital, the Commission states that ‘[t]he disclosure order should concern the interface specifications only’.

205    In an opinion entitled ‘Innovation in Communication Protocols that Microsoft is ordered to license to its server operating system competitors’, enclosed as annex C.4 to the reply, Mr Lees, one of Microsoft’s experts, himself draws a distinction between ‘the protocols used for communications between servers and … the algorithms/decision rules that operate internally on each server’, before observing that it is the protocols that have to be disclosed pursuant to Article 5 of the contested decision. In his opinion, Mr Lees focuses on the DRS protocol, used for the multimaster replication mechanism, and states that it represents one of numerous protocols to which Microsoft grants its competitors access in application of the contested decision.

206    It follows that the information to which the contested decision refers constitutes a detailed technical description of certain rules of interconnection and interaction that can be used within the Windows work group networks to deliver work group services. That description does not extend to the way in which Microsoft implements those rules, namely, in particular, to the internal structure or to the source code of its products.

–       The degree of interoperability required by the Commission in the contested decision

207    The Commission adopted a two-stage approach in determining whether the information at issue was indispensable. It first examined the degree of interoperability with the Windows domain architecture that the work group server operating systems supplied by Microsoft’s competitors must achieve in order for those competitors to be able to remain viably on the market. It then proceeded to determine whether the interoperability information to which Microsoft refused access was indispensable to the attainment of that degree of interoperability.

208    The Court will examine below the degree of interoperability required by the Commission in the contested decision. At this stage, however, it will not examine the question as to whether the Commission was justified in concluding that Microsoft’s competitors could viably remain on the market only if their products were capable of achieving that degree of interoperabil