Judge change proposed in MS-EU case

BRUSSELS -- A decision to change the judge presiding over the E.U.'s antitrust case against Microsoft could substantially delay the final ruling, a representative of an industry association backing the European Commission's case against the company said on Monday.

Thomas Vinje, counsel for the European Committee for Interoperable Systems, a group of five tech firms that is supporting the Commission in its antitrust case, said that a plan to have a 13-judge team hear the case could delay the final ruling until the end of 2006. The group, and other industry insiders, had been hoping for a final ruling by mid-2006.

Vinje was commenting on a letter sent by the president of the E.U. Court of First Instance, Bo Vesterdorf, to all concerned parties in the Microsoft case on Friday. Vesterdorf outlined plans to change the judge currently presiding over the case and handle the judgment himself.

Instead of the case being heard by a five-judge team lead by French Judge Hubert Legal, the plan calls for the case to be heard by a group of 13 judges, known as the Grand Chamber.

Vinje said: "This could delay proceedings. They [Legal's team] had been moving more rapidly than usual for a normal Chamber. Whether the Grand Chamber can move as rapidly as Judge Legal is questionable."

He added that the delay caused by the judge change could effect any final ruling that goes against Microsoft. He pointed out, for example, that the Commission decided to postpone implementation of its remedy on licensing communications protocols for its workgroup server software until after the court rules. If a final ruling is delayed beyond mid-year 2006, it would have "serious implications for the market," Vinje warned.

The Commission is the E.U.'s executive branch, and is also responsible for antitrust investigations.

Originally, the hearing for the case was expected to take place this October or November with the ruling in the second or third quarter next year.

The need to brief the new judges on the case's complicated issues will cause the delay. Vesterdorf will not need time to learn the case. He was the judge who decided against Microsoft last year when they asked for certain measures imposed by the Commission to be suspended pending the court's judgment. Vesterdorf argued that Microsoft failed to prove there would be "irreparable harm" to the company if the measures were imposed. However, the court later threw out the Commission's decision.

Vesterdorf's decision to hand the case to the Grand Chamber follows anger at an article Legal published in a French specialist newsletter on competition law in which he called clerks of the court "ayatollahs" who acted as though they had more power than the judges. Vesterdorf is reported to have been furious when he read the article.

None of the parties is expected to contest Vesterdorf's proposal to hand the case to the Grand Chamber.