BRUSSELS (Reuters) - Microsoft Corp says a U.S. antitrust court victory last week has a lot to teach Europeans at a time when the software giant faces a major antitrust case here, but experts differ over whether the U.S. decision will make a difference.
European Union Court of First Instance Judge Bo Vesterdorf is considering a Microsoft request that he suspend sanctions imposed by the European Commission for the firm's abuse of its dominance of personal computer operating systems.
Vesterdorf will make his decision on the heels of a U.S. Court of Appeals decision in Washington that gave Microsoft a sweeping victory by essentially upholding a deal on remedies that it negotiated with the Justice Department.
"I do hope that people in Europe and around the world will pause and perhaps take a bit of time" to read the decision, Microsoft general counsel Brad Smith said, noting it "addresses many of the precisely same questions that are front and centre in Europe."
The two courts, the U.S. Court of Appeals in Washington and the Court of First Instance in Luxembourg, have different procedures, different precedents, interpret different laws and have different cases at issue.
But while some of those differences may work against Microsoft, others could help it in the coming weeks as a European Union judge makes a decision crucial to the company and enforcement of antitrust law.
The EU executive ordered Microsoft to offer a version of Windows without its Media Player audiovisual software and to provide more information to rival makers of server software.
The Commission says that if the remedies are suspended they will become irrelevant by the time the case is over years from now, while Microsoft says the sanctions will damage the company in ways that cannot be undone.
In the United States, both Microsoft and the government applauded the Washington decision because both had been in the same corner, which had been challenged by the State of Massachusetts and two anti-Microsoft trade groups.
"This is a resounding victory for the Justice Department and American consumers," said the head of the antitrust division, assistant attorney general R. Hewitt Pate.
The ruling endorsed sanctions on Microsoft that its opponents argued did little to change the company's behaviour. They point out that nearly all computers sold today come with Microsoft Windows and no competition has developed since the case was brought in 1998.
But the U.S. appeals court said that Microsoft's business practices were changed in a useful way that did not harm the company.
"We say, well done!" the unanimous ruling said in commending the lower court judge's approach.
An antitrust expert said one reason for the U.S. ruling was deference to those who had worked closely with the situation -- the Justice Department and the lower court.
The judge had "a lot of discretion in formulating a remedy and the appeals court thought that she exercised it reasonably and didn't want to second guess the details," said Jonathan Baker, a professor of law at American University in Washington.
By contrast, the Court of First Instance has been busy clipping the wings of the Commission, overturning three of its bans on mergers in recent years.
It has narrowed what is called the Commission's "margin of appreciation" and found it made many "manifest errors."
"The Court of First Instance hasn't been deferential" to the Commission, said Chris Bright, an antitrust lawyer for Shearman and Sterling in London.
The U.S. decision might give Vesterdorf pause about deciding differently, Bright said, making him wonder how far out of sync with the United States he wants to be.
But American University's Baker said "the violations were a lot different in the European Union and the United States. There's no reason the remedy has to be the same."
Typically, a decision by the president of the Luxembourg takes a few months.
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