Perhaps the most closely watched figure in European legal circles this summer has been Bo Vesterdorf, the Danish judge who heads Europe’s top appeals court, with antitrust lawyers hanging on his every public utterance.
The object of their interest is not the lanky multilingual jurist himself, but rather how the Court of First Instance he leads will rule when it announces its decision Sept. 17 on Microsoft’s appeal of the biggest antitrust case in Europe. But Vesterdorf, 61, who has said he plans to retire on the day the decision is made public, has avoided any discussion of the case.
“He’s been very, very careful not to give anything away,” said Jonathan Zuck, the president of the Association for Competitive Technology, a group based in Washington that has intervened in the case to support Microsoft. “But whatever comes out, there are huge issues that will be decided here.”
Less than a month before its publication, expectations for a watershed decision are running high. And despite the information vacuum, lawyers on both sides of the case say they expect the court to render a split decision of sorts – giving both Microsoft and the European Commission victories on key legal points.
Microsoft, the reasoning goes, will prevail on the issue of “bundling,” with the court recognizing the company’s right to wrap new extras like voice recognition, anti-virus and media player software into its dominant Windows operating system.
But the same court is seen upholding the commission’s demand that Microsoft, based in Redmond, Washington, share at reasonable cost the computer code that competitors need to connect their computer servers with those of Microsoft. In its original 2004 decision, the commission ruled that Microsoft had used its de facto monopoly in Windows to essentially corner the market for work-group servers.
“Given the record of this court, there is the inclination to adopt a split decision, giving a victory to the commission on interoperability and a victory on bundling to Microsoft,” said Damien Gerardin, an antitrust lawyer in Brussels with the law firm Howrey who is not directly involved in the case but has been closely following Vesterdorf’s decisions and appearances.
Christopher Fretwell, a court spokesman, said Vesterdorf, who has presided over the court since March 1998, would not give interviews on the case before the Microsoft verdict was announced.