This week, Microsoft asked the European Court of First Instance to suspend its European Union (EU) antitrust sanctions while the company conducts its appeal. Citing the "historic" nature of the EU sanctions, which Microsoft says would require the company to share "secret technology" with its competitors, Microsoft argued that complying with the sanctions now will needlessly harm the company if it eventually wins or settles the EU case.
"This is the first time in history that a company has been ordered to draw up a description of secret technology and deliver it to its competitors," a Microsoft lawyer said during a hearing in Luxemborg before the EU court. "The path chosen by the European Commission is a path that will harm hundreds of European companies, thousands of European software developers, and millions of European consumers," Microsoft Senior Vice President, General Counsel, and Corporate Secretary Brad Smith said before the start of the hearing. "The decision would hinder innovation and slow economic growth."
Interestingly, Microsoft is concentrating on one aspect of the sanctions--sharing technical information with its competitors. Many observers believe that the information-sharing provision is the least damaging of the sanctions that the EU imposed. The EU also ordered Microsoft to pay a fine in excess of $600 million and to offer Europeans a version of Windows that doesn't include a bundled copy of Windows Media Player (WMP). Earlier this week, Smith said that his company is prepared to offer the stripped-down Windows version to European consumers.
To win a stay of the ruling, Microsoft will have to demonstrate that its case is winnable, that it faces irreparable harm if it's forced to comply immediately, and that the irreparable harm outweighs any other aspect of the case. Those factors, perhaps, explain why Microsoft is concentrating on the more nebulous of the charges. The company probably would have difficulty proving that offering another Windows version is irreparably harmful.
Judge Bo Vesterdorf has scheduled at least 2 days for the hearings, although they could run into Saturday. The judge will base his decision on the arguments that both Microsoft and the EU prosecutors made during the hearings and on 1500 pages of supporting documents.