The CFI Microsoft Decision – Affirming European Antitrust Activism

I want Microsoft’s
market share to diminish to significantly less than 95%. I can’t say that it
has to be precisely 50% or whatever number, but it has to be significantly
less than 95. 

– Neelie Kroes, European Commissioner for Competition Policy 

Today’s decision from the European Court of First Instance
affirms the broad role that competition policy has in Europe.
You can slug through the lengthy court opinion, but these press conference
Q&A comments of Neelie Kroes (including the above quote) are revealing.
They show the true intent of the European Commission’s competition policy
regulators: competition policy is about
micromanaging software development and dictating market evolution.

Here’s the largest buzzword from both Kroes and the EC’s
press statement: interoperability. Again, a quote from Kroes, this time from
her prepared statement: 

In confirming the interoperability part of the Commission’s decision, the
Court has confirmed the importance of interoperability for consumer choice and
innovation in high tech industries. If competitors are unable to make their
products "talk to" or work properly with a dominant company’s
products, they are prevented from bringing new innovative products onto the
market, and customers are locked into the products of the existing provider.

Sure, interoperability is often an important feature of IT
— if it’s market-driven. Otherwise,
it smacks of the sort of “infrastructure socialism” that Adam Thierer and Wayne
Crews have cataloged in their book. It also smacks of political rent seeking by
competitors. As Crews recently articulated in a CEI C:Spin, “subjecting
Europe’s technology sector to political predation via aggressive antitrust
regulation and involuntary licensing is less about protecting consumers than
about competitors’ regarding themselves as entitled to someone else’s
customers.” 

Paragraph 454 of the CFI decision has this precautionary
nugget: "The Commission asserts that the applicant’s refusal creates a risk that
all effective competition on the secondary market for work group server
operating systems will be eliminated." A “risk”? Come on! EC antitrust
regulators are now a pre-crime unit, using the force of law to intervene in precautionary
ways. 

So are we at the dawn of a new antitrust era in the EU,
where a precautionary principle applies to antitrust, and the refusal to supply
or license intellectual property to a competitor violates competition policy?
Maybe…but maybe not. 

The court affirmed that competition policy regulators have
the legal power to engage in strong
antitrust regulation. But whether as a matter of sound public policy the
Commission should involve itself in
certain competition policy matters is a different story. 

Regulators tout the way trust-busting promotes competition,
but they rarely talk about the costs of antitrust interventions on the overall
climate for innovation. Even Commissioner Kroes said in her remarks that “investment
and innovation require a stable, fair and restrained regulatory environment. I
remain committed to delivering just that.” 

Let’s hold Kroes to her word, and hope that a victorious
European Commission isn’t a recklessly emboldened regulator. Competition policy
is a blunt instrument to remedy perceived anti-competitive acts – nothing more.
It shouldn’t be an expanded tool to enforce market shares, dictate prices, and resolve
competitor disputes that are best left to the marketplace.