The Assistant Attorney General for Antitrust, Thomas O. Barnett, suggested yesterday that the European Court of First Instance went too rough on Microsoft when the CFI upheld a $689.7 million antitrust fine. "We are," he said in a press release, "concerned that the standard applied to unilateral conduct by the CFI, rather than helping consumers, may have the unfortunate consequence of harming consumers by chilling innovation and discouraging competition." He added that "U.S. courts recognize the potential benefits to consumers when a company, including a dominant company, makes unilateral business decisions, for example to add features to its popular products or license its intellectual property to rivals, or to refuse to do so."
Blawgletter can’t imagine that European Union antitrust enforcers will view Barnett’s statement as constructive. Although Barnett pointed to the Antitrust Division’s "wide-ranging and positive relationship with the EC on antitrust matters", U.S. enforcement policy has laxened as the EC has enlivened its own.
A tell-tale sign: The EC continues to uncover price-fixing and market allocation cartels while the Antitrust Division occasionally stumbles over one.
Barry Barnett
