OFE Comment - Microsoft Proposal on the Browser Case – is it enough?

OFE 31st July 2009 - The proposals by Microsoft in order to settle the latest European Commission Competition case (brought originally by Opera) has been reported, and like most others there seems to be much to welcome it. It does offer on the browser a 'ballot screen', much vaunted as a possible suitable remedy, and initially dismissed by Microsoft. It also addresses other concerns in respect of openness and interoperability of other named Microsoft products. ECIS (one of the plaintiffs) wisely, in my judgment, have cautiously welcomed the response as a first step but also reserved judgment until all the details are known. Once bitten, twice shy!

Consultation will now start, but it occurs to me that the issue needs to address one key point, namely that the case was brought because in their view competition in the market was being unfairly limited and that dominance in one product was being used to adversely affect others. Certainly few would conclude that the dominance of IE was down to the quality or functionality of the product over others. But reaching a level playing field is never simple, particularly when you have to address the current misbalance of the status quo. If we really want avoidance of lock-in and an open competitive market then I am afraid there is no way to avoid some positive discrimination to get to that level field. But what? Certainly positive, (maybe mandated?) public procurement of open standards will be a good first step – less fine words and more action. But also recognition that any remedy has to be globally effective. A suggestion that it is limited to the EU might be understood by legislators but the market doesn't recognise such barriers, it makes as much sense as saying it is limited to Belgium.

Graham Taylor