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Microsoft on Wednesday accused the European Commission of “the biggest encroachment on intellectual property in European competition law history”, and likened the regulator’s antitrust ruling to “opening the vaults of a bank” and handing out money to passers-by.

The software group’s withering attack formed part of a legal challenge in the European Court of First Instance in Luxembourg to the Commission’s March 2004 decision that found Microsoft guilty of abusing its dominant position and imposed a record €497m ($616m) fine.

Ian Forrester QC, a partner at White and Case, which is acting for Microsoft, insisted the Commission had been wrong to punish Microsoft for refusing to supply information about the Windows operating system to rival companies.

Brussels argues the information was necessary to allow other companies to develop server software that is “interoperable”, or runs smoothly, with Windows-driven servers and computers.

Mr Forrester argued that the Commission’s order to make available 12,500 pages of interoperability information infringed several Microsoft patents without proper justification.

He said Brussels had failed to show that the interoperability information demanded by the regulator was “indispensable” for other companies to enter the market.

The Commission’s case, Mr Forrester added, was “like a jellyfish – shapeless, and very painful”.

But the Commission’s legal team disputed Microsoft’s arguments vehemently, saying the group had “rigged the rules” of the market to ensure its rivals were unable to compete. The regulator dismissed, in particular, Microsoft’s claim that the ruling infringed its intellectual property, saying the group had only been able to cite four European patents in its defence.

The Commission claimed that, crucially, Microsoft had never at the time defended its refusal to supply rivals with interoperability information by referring to intellectual property rights.

The group was therefore not in a position to cite IP rights as a justification for its abuse, according to Anthony Whelan, representing the Commission before court.

The two sides also sparred over whether Microsoft’s behaviour had actually threatened to eliminate competition.

Mr Whelan insisted that Microsoft had already attained a market share of at least 60 per cent and that the threat of elimination was real: “There is a reshuffling of the fringe [of the market] but the fringe remains just that.”

The 13 judges will on Thursday have the chance to put questions to the two parties. The hearing is due to end on Friday.

Copyright The Financial Times Limited 2017. All rights reserved.
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