European Commission fines Microsoft, warns others

In an unprecedented move Wednesday, the European Commission fined Microsoft Corp for failing to follow through on a commitment it made to give customers a clear choice of web browser. The fine of 561 million euros ($731 million) represents 1 percent of Microsoft's annual sales. 

AP Photo/Virginia Mayo
European Commissioner for Competition Joaquin Almunia speaks at EU headquarters in Brussels on Wednesday. The European Union Commission fined Microsoft euro 561 million (US dollars 733 million) for breaking the terms of an earlier agreement to offer users a choice of internet browser.

The European Union fined Microsoft Corp 561 million euros ($731 million) on Wednesday for failing to offer users a choice of Web browser, an unprecedented sanction that will act as a warning to other firms involved in EU antitrust disputes.   

It said the U.S. software company had broken a legally binding commitment made in 2009 to ensure that consumers had a choice of how they access the internet, rather than defaulting to Microsoft's Explorer browser.   

An investigation found that Microsoft had failed to honor that obligation in software issued between May 2011 and July 2012, meaning 15 million users were not given a choice.   

It is the first time the European Commission, the EU's anti-trust authority, has handed down a fine to a company for failing to meet its obligations.    

While the sanction is sizeable, representing more than 11 percent of Microsoft's expected net profit this quarter and 1 percent of annual sales, the Commission could have charged the company up to 10 percent of annual global revenue.    

The world's largest software company can easily pay the fine out of its $68 billion in cash reserves. It holds $61 billion of that outside the United States, much of it in Europe, to take advantage of low tax rates.   

Microsoft shares fell 0.9 percent to $28.09 on Nasdaq.    

"If companies agree to offer commitments which then become legally binding, they must do what they have committed to do or face the consequences," Joaquin Almunia, the EU's competition commissioner, told a news conference.   

"I hope this decision will make companies think twice beforethey even think of intentionally breaching their obligations oreven of neglecting their duty to ensure strict compliance."   

Microsoft said it took full responsibility for the incident,which it has blamed on a technical error. The board cut chiefexecutive Steve Ballmer's bonus last year partly as a result,and also faulted former Windows head Steven Sinofsky who leftthe company last year for unrelated reasons.   

The company did not say whether it would challenge theruling, but it is not expected to do so, largely so as not toantagonise regulators.   

"We have apologized for it," Microsoft said in a statement.   

"We provided the Commission with a complete and candidassessment of the situation, and we have taken steps tostrengthen our software development and other processes to helpavoid this mistake - or anything similar - in the future."   

Almunia said regulators may have made a mistake by allowingMicrosoft to police its own behaviour instead of appointing anexternal trustee to ensure compliance with the commitments.   

"In 2009, we were even more naive than today," he said.           

Waring shot to Google, others    

Microsoft's fine is a good example of the Commission's hardline approach toward companies which disregard rules whetherdeliberately or not, said Charles Whiddington, a partner atLondon-based law firm Field Fisher Waterhouse.   

"The implications for companies going forward is that they must be more rigorous in complying with any agreement with the Commission, which does not take prisoners for infractions,"he said.   

"Companies face severe sanctions for flouting EU rules, even accidentally."   

Wednesday's fine brings the total of EU fines issued againstMicrosoft over the past decade to more than 2.2 billion euros,making it the world's worst offender of EU rules.   

While the charge could have been higher, it still marks afirm sanction and will be noted by the likes of Google,which is involved in a dispute with the Commission over how itranks search engine results.   

Google is under pressure to offer concessions to prevent theCommission moving to the next stage in the case, which couldinvolve fines. Other major technology companies such as SamsungElectronics are also under investigation.   

Wednesday's decision is expected to help Microsoft draw aline under its troubles in Europe as it gears up for anintensified battle against Google. Microsoft is one of the complainants in the EU's investigation into the search giant.   

Almunia has also signaled EU regulators' concern overantitrust issues in the links between technology platform ownersand application developers, in a move that could spell troublefor Apple Inc and Google, whose iPads and Android tablets are leading the growth of the computer market.    

Relations between the EU's antitrust body and Microsoft have frequently been tense. In 2004, the Commission found that thecompany had abused its dominant market position by tying WindowsMedia Player to the Windows software package.   

In 2009, in order to resolve other competition concerns, Microsoft undertook to offer users a browser choice screenallowing them to download a browser other than Explorer.   

The Commission made that obligation legally binding for fiveyears, until 2014, and initially the company complied. FromMarch 2010 until November 2010, 84 million browsers weredownloaded via the screen, the Commission said.    

But the Windows 7 service pack 1 rolled out between mid-2011 and mid-2012 failed to offer the choice, leading to theinvestigation that resulted in Wednesday's fine.   

In calculating the fine, the Commission said it had takeninto account that Microsoft had cooperated by providinginformation that had helped speed up the investigation.   

Analysts always found it odd that Microsoft would havepurposefully failed to offer a choice of browsers via itssoftware given that the potential fine for such a failure wouldfar exceed any potential income from not offering it.   

Microsoft's share of the European browser market has morethan halved since 2008 to 24 percent. Google's Chrome has a 35percent share, followed by Mozilla's Firefox with 29 percent,according to Web traffic analysis company StatCounter.    

Given Microsoft's fading power in the browser market, somequestioned the size and point of the fine.   

"As always, the regulators are late to the party," said Kim Forrest, senior equity research analyst at Fort Pitt Capital Group in Pittsburgh. "How did the EU come up with that figure in damages? There are no restrictions as to being able to place anew browser on the PC and it's really kind of clear that Microsoft isn't benefiting monetarily from the browser at this point."

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