Corporate & Securities Law

EU Likely to Require A Browser Ballot Screen for Windows 7 in Europe

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OK.  I thought that woud be funnier than it was. Moving on.

It looks like the old/new EU Microsoft browser tie-in case might be resolved through a requirement that Microsoft offers consumers a “ballot screen”  that would allow users to select and install competing browsers.  (HT: WSJ) That is, Microsoft will be offering up a menu of rival browsers to consumers.  Apparently, the EU is willing to allow Internet Explorer on the menu.  Word from the Commission on the proposal is favorable:

The Commission welcomes this proposal, and will now investigate its practical effectiveness in terms of ensuring genuine consumer choice.  As the Commission indicated in June (see MEMO/09/272 ), the Commission was concerned that, should Microsoft’s conduct prove to have been abusive, Microsoft’s intention to separate Internet Explorer from Windows, without measures such as a ballot screen, would not necessarily have achieved greater consumer choice in practice and would not have been an effective remedy.

Microsoft’s statement on the matter, along with tthe proposal at issue, are available here.

No details yet on what the menu will look like. The WSJ story reports that choices will include Google’s Chrome and Mozilla’s Firefox along with the option to turn Internet Explorer off.   Rival browser Opera’s chief technology officer thinks that the EU compulsory promotion regime for rival browsers on Microsoft’s dime is a good idea: “This is a happy day for us.”  No word yet as to whether the ballot screen will include advertisements for rival browsers featuring endorsements by Microsoft executives.

There will be plenty of time to comment on the substantive merits of this settlement if and when it happens.

But there is an interesting

In 2007 Bush administration DOJ AAG Tom Barnett offered a press release in the wake of that EU Microsoft decision calling out Nellie Kroes et al for committing the classic error of monopolization enforcement — conflating protection of competition with competitors to the detriment of consumers.   Obama administration DOJ AAG Christine Varney has also commented previously that, from an antitrust perspective, “Microsoft is so last century” and like Barnett, offered some concern that the EU was overshooting the mark with respect to monopolization enforcement.  Varney criticized the Europeans for going too far and worried publicly about the impact on consumers if the Europeans are allowed to set the bar for single firm conduct:

Europeans are setting rules, companies that are doing business globally cannot generally distribute two products, cannot generally compete in one manner in Europe and a different manner in the United States. So we may see ourselves, and this is a bad thing, if we don?t have influence on the development of dominant firm behavior, I think the Europeans are much more extreme than even I would be. So unless we have some credibility and can sit at the table and jointly continue to pursue the evolution of what we would call section 2, I think we?re going to cede this territory to the Europeans entirely and we?re not gonna have a whole lot to say about what abusive dominance looks like for a global firm.?

So here’s the question.  Is the new DOJ going to respond to this settlement?  There was much criticism (in my view, misplaced) at the time of the Barnett statement that it was somehow inappropriate to comment on matters involving EU enforcement matters and not US law.  Given the fundamental reality that, as Varney notes, the stakes here involve whether or not the territory will be “ceded” at the global level, are we going to hear from the DOJ on this?  Should we?

Full post as published by Truth on the Market on July 25, 2009 (boomark / email).