BRUSSELS, Belgium - The European Commission is planning to merge its latest investigation into Microsoft Corp.'s practices with an antitrust case that it opened against the company in 1998, lawyers here said yesterday.
A consolidation would not only speed up the legal process, it would also strengthen the commission's case against Microsoft, antitrust lawyers said.
The first investigation by European regulators into Microsoft began in 1998, after a complaint from Sun Microsystems Inc.
The commission, the administrative arm of the European Union, started proceedings based on accusations that Microsoft abused its dominant position in the market for personal computer operating systems.
The complaint alleged that Microsoft was giving only partial information about its software to Sun and other companies that make the powerful servers that connect PCs in a network.
In February, European regulators began a second investigation on the same issue, but focusing on Microsoft's Windows 2000 operating system. The commission would normally take a couple of years to reach the point where it would open legal proceedings. But by merging it with an existing case, the commission could be in a position to rule on all antitrust allegations sooner.
The second investigation "is almost identical to the first case in substance," one lawyer said.
Commission officials declined to comment. Microsoft representatives also declined to comment.
"Merging the cases would make a lot of sense," said Jacques Bourgeois, competition lawyer with the law firm Akin Gump Strauss Hauer & Feld. "It has been done before."
Bringing together the evidence in both cases "would not only speed up the whole process, the chances of the commission succeeding would be greater because it would reveal a pattern of behavior," said Maurits Dolmans, a lawyer with Cleary Gottlieb Steen & Hamilton.
"Windows 2000 is different from other operating systems like Windows 98," he said. "If the commission can show that the same problems exist in both, this would indicate there is a strategy behind Microsoft's behavior, and it shows that the negative effects are continuing."
Neither Bourgeois nor Dolmans is involved in the Microsoft case.
The addition of evidence from rivals and technical experts about Windows 2000 would strengthen the argument that the violation is continuing and would increase the gravity of Microsoft's suspected infraction of European antitrust law, therefore making the company liable for a higher fine, Dolmans said.
The commission fine can total up to 10 percent of a company's global annual sales, though the commission has not gone that far to date. Microsoft had sales of nearly $23 billion in its most recent fiscal year.
The commission's investigation differs from the U.S. antitrust case against Microsoft, which contended that Microsoft had protected its dominance in PC operating systems through measures aimed at weakening Netscape Navigator and Sun's Java system. A federal judge ordered Microsoft split into two parts and imposed restrictions on its business practices. That decision is under appeal.
