EC undecided whether Win7/IE8 bundling is unlawful

In the European Commission's first public comment on the matter since Microsoft changed its mind last Friday, a spokesperson for the EC's Office of Competition Policy told Betanews this morning that it has yet to make up its mind on the matter of whether Microsoft's bundling of Internet Explorer with Windows is specifically unlawful. This despite the EC having sent Microsoft a formal Statement of Objections last January which, although still officially private, Microsoft publicly interpreted as saying such bundling was unlawful.

"The Commission has not taken a final view on the lawfulness of Microsoft providing Windows with Internet Explorer preinstalled," stated EC press officer Maria Javorova this morning. "This issue is the subject of pending proceedings, the outcome of which cannot be prejudged, and the fact that Microsoft has announced its intention to continue this practice in the latest version of Windows to be shipped in Europe does not change that."

Javorova was responding to an inquiry from Betanews that contrasted Microsoft General Counsel Brad Smith's statement from July 24 that his company would pursue shipping Windows 7 E to European customers without a browser, in the interest of complying with European law, with Deputy Counsel Dave Heiner's statement a week later, saying Microsoft would change course and ship Windows 7 with Internet Explorer 8, acting on the advice of its technology partners. The latter statement could be interpreted as saying that Microsoft is more concerned about its partners than with the law, but that's only if we know for sure that bundling IE8 with Win7 is expressly unlawful.

After having received the Statement from the EC last January, it declined to make any portion of it public. But Microsoft, in its own public response, announced, "The Statement of Objections states that the remedies put in place by the US courts in 2002 following antitrust proceedings in Washington, DC do not make the inclusion of Internet Explorer in Windows lawful under European Union law."

Javorova's statement to Betanews would appear to imply that the EC believes such bundling may be unlawful, but has not actually made that determination. Thus if Microsoft should decide at some time between now and the next round of proceedings to distribute Windows 7 with IE8, it may only risk being asked not to do so in the future, but would not be in violation of EC law at present.

"The Commission is currently investigating the suitability of Microsoft's ballot screen proposal to address the concerns raised in those pending proceedings," the press officer's statement concluded.