Bonum Certa Men Certa

Cablegate: Competition Commissioner Neelie Kroes Accused of “Undermin[ing] Support for Intellectual Property” in Microsoft Case

Cablegate



Summary: A look at accusations from private companies, directed at the mere enforcement of interoperability and fair competition

"Attack" on IPR (the sacred cow) is how the US described Brazil's choice of a mostly American/international standard, OpenDocument Format.



In the following Cablegate cable (several parts culminating in €¶11), the sort of nonsense Kroes had to cope with for merely pressuring (or punishing) a monopoly abuser can be seen. It it also being rebutted in the cable.



VZCZCXRO5104 PP RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV RUEHSR DE RUEHBS #0172/01 0371546 ZNR UUUUU ZZH P 061546Z FEB 09 FM USEU BRUSSELS TO RUEHC/SECSTATE WASHDC PRIORITY RUEATRS/DEPT OF TREASURY WASHDC INFO RUCNMEM/EU MEMBER STATES COLLECTIVE RUCPDOC/USDOC WASHDC RUEAWJA/DEPT OF JUSTICE WASHDC

UNCLAS SECTION 01 OF 03 BRUSSELS 000172

SENSITIVE SIPDIS

JUSTICE FOR C. HARROP STATE PLS PASS TO FTC FOR J. PARISI PLEASE PASS TO USTR STATE FOR E, EUR/ERA, EEB/TPP NSC FOR KRISTINA KVIEN

NOT FOR INTERNET DISTRIBUTION

E.O. 12958: N/A TAGS: ECIN [Economic Integration and Cooperation], ECON [Economic Conditions], EFIN [Financial and Monetary Affairs], EINV [Foreign Investments], ECPS [Communications and Postal Systems], EUN [European Union] SUBJECT: EU COMPETITION AUTHORITIES HOPE TO MAKE GOOD U.S.-EU COOPERATION EVEN BETTER

€¶1. (SBU) SUMMARY. DG Competition officials told USEU January 14 they hope to work closely with the Obama Administration to improve already strong U.S.-EU competition policy cooperation. Officials in the DG Competition Chief Economist's office and International Unit said bilateral cooperation has been strong on mergers and cartels but can improve in the antitrust area. The officials hoped that an Obama DOJ will move closer to FTC positions on mergers and unilateral conduct by firms. DG Competition's chief economist stressed the increasing role of economic analysis in EU competition case review, and said high-profile cases against Intel and Microsoft support this trend and have not weakened EU support for IP protection. The officials seek to cooperate with the U.S. on support for new competition agencies in India, China and elsewhere. While the Competition Commissioner and Director General will change late this year, DG COMP's keen interest in engaging with new senior U.S. officials offers a good opportunity to deepen this important relationship. END SUMMARY.

DG COMP OFFICIALS SEEK TO IMPROVE ALREADY STRONG U.S.-EU COMPETITION COOPERATION --------------------------------------------- ---------

€¶2. (SBU) Dominique Van Der Wee, Unit Head for International Relations at the European Commission Directorate General for Competition (DG COMP), told USEU January 14 that Competition Commissioner Kroes, Director General Philip Lowe, and other DG COMP officials value highly their existing close relations with U.S. competition officials at the Federal Trade Commission (FTC) and Department of Justice (DOJ). Van Der Wee said DG COMP sees a difference in antitrust enforcement attitudes between FTC and DOJ, however, and expressed the hope that incoming Obama DOJ officials will move toward FTC's "more aggressive" positions, particularly on mergers and unilateral conduct by firms. He said that existing bilateral cooperation has been strong on mergers and cartels, but can improve in the area of unilateral conduct. He noted that a U.S.-EU agreement in fall 2008 to establish high-level regular phone calls on unilateral conduct cases, to function as an "early warning" system of major actions, has yet to be implemented fully; he hoped this could resume with incoming officials by March.

€¶3. (SBU) Van Der Wee said there is "enormous interest" throughout DG COMP in meeting incoming senior FTC and DOJ officials, perhaps at the ABA Conference in Washington March 25-27.

€¶4. (SBU) On February 2 USEU EconMin heard the same message of cooperation from DG COMP chief economist Damien Neven and two members of his team (Oliver Stehmann, deputy chief economist, and Miguel de la Mano, economist). Neven said his office has had good relations generally for the past few years with the economists' teams at FTC and DOJ, although in 2008, relations were less active due to the pending U.S. presidential transition. He said he had suggested recently to DOJ that the annual chief economists' exchanges be restarted, possibly in July this year, and seemed to get a positive response. Neven explained that working level contacts on mergers have continued to be particularly strong, noting extensive DG COMP- FTC discussions during consideration in late 2007 and early 2008 of Google-DoubleClick merger (NOTE: which both the U.S. and EU approved. End note).

BUT CHALLENGES REMAIN OVER ANTITRUST COOPERATION --------------------------------------------- ---

€¶5. (SBU) Neven noted that antitrust cooperation has been more complicated, and suggested that more extensive U.S. confidentiality requirements may limiting useful information exchange after the USG has opened an investigation. He said this leads the U.S. side "to ask lots of questions but not be able to share as much." (Note: U.S. and EU rules on confidentiality waivers differ in some respects, but the U.S. can share information with waivers. End note).

€¶6. (SBU) Neven also pointed to the "wide gap" between FTC and DOJ over unilateral conduct, which he said had made it more difficult to establish points of common concern with the USG. He said DG COMP hopes that the DOJ enforcement report on Section 2 of the Sherman Antitrust Act was an "outlier," in

BRUSSELS 00000172 002 OF 003

advocating a "more extreme position," and thought this view would change under the Obama team. (Note: the 2008 report covered unilateral conduct by firms, and was not endorsed by FTC. End note). Neven did say that Deputy Director General for antitrust and mergers Nadia Calvino's one conference call in 2008 with DOJ and FTC was very productive, however, and hoped these could continue.

ROLE OF EU CHIEF ECONOMIST IN CASE REVIEW -----------------------------------------

€¶7. (SBU) USEU asked about Neven the evolving role of the Chief Economist's office in DG COMP review of competition cases. Neven said there has been a consistent trend for stronger economic input on "theory of harm" into case analysis, with measurable results. (Comment: EU competition law has evolved from a purely legal analysis to more emphasis over the last decade on economic impacts in evaluating antitrust and merger concerns. End comment). Neven highlighted the example of the RyanAir-Aerlingus merger report from 2008, which contains 100 pages of economic analysis (of 400 total).

€¶8. (SBU) Neven's office details one to three staff to specific DG COMP case teams, he continued. He said his team is increasingly involved in sectoral inquiries, with three of his staff working on the ongoing pharmaceutical inquiry. (Note: DG COMP issued a preliminary report on its major pharmaceutical inquiry in November; the final report is expected in mid-2009). Neven's office was less involved in the influential 2005 energy sectoral inquiry, which led to the proposed EU 3rd energy liberalization package. (Note: this package remains under consideration by the EU Council and Parliament. End note).

€¶9. (SBU) Neven underscored, however, the "schizophrenic" nature of his office, which remains independent from the case teams even as it supports case review. He noted that the non- horizontal merger guidelines, adopted a year ago, have led to the issuance of different analyses than would have earlier been the case. He also said his office had been heavily involved in state aid review of the many recent financial sector bailouts, and has played a strong policy development role here.

CHIEF ECONOMIST: KEY CASES SUPPORT TREND TOWARD ECONOMIC ANALYSIS, DON'T UNDERMINE IP RIGHTS --------------------------------------------- ---------

€¶10. (SBU) USEU asked Neven's views on Intel's concerns that the Commission's seven-year case against the firm for potential antitrust violations has been "politicized." He said it was strange that Intel didn't respond to the Commission's second Statement of Objections (SO) charging the firm with potential violations. He thought the European Court of First Instance (CFI) correct in tossing out in early February Intel's argument for an extension of its time to prepare its case. He said Intel may think the Commission has been very selective in reviewing evidence, but said Intel has itself been very selective in arguing its position. He said that both SOs against Intel were economic effects-based, rejecting Intel's argument that the Commission dropped an effects-based position in its second SO. At Intel's hearing last year, Neven said a "junior member" of the legal team had stood up and said "remember the case law," which doesn't directly require effects-based analysis, which Neven considered the basis for Intel's (unjustified) claim that the Commission is ignoring economic effects in evaluating the firm's case.

€¶11. (SBU) USEU raised concerns increasingly expressed by the private sector concerns that DG COMP decisions have begun to undermine support for intellectual property (IP) rights in Europe. Neven disagreed with this view, declaring that the 2004 Microsoft decision was a special case soundly based on refusal to supply, with the decision and subsequent CFI decision expressly recognizing IP rights. His staff explained that the recent Article 82 guidance paper incorporated these experiences and lays out how to operationalize such special tests.

BRUSSELS 00000172 003 OF 003

INTEREST IN COOPERATION ON THIRD COUNTRIES ------------------------------------------

€¶12. (SBU) Van Der Wee said DG COMP seeks to develop a coordinated approach with the U.S. on technical support for new third country competition agencies, beginning with India, currently establishing its agency. He added that DG COMP also seeks to encourage China to join the International Competition Network (ICN), which may require asking Taiwan to change its nameplate at ICN, a sensitive issue.

COMMENT -------

€¶13. (SBU) DG COMP clearly expects the advent of a new Administration will bring changes to U.S. competition enforcement, and hopes this will "bring the U.S. closer" to EU positions on unilateral conduct and other key issues. Competition Commissioner Kroes' term will end with the European Commission changeover at the end of this year, while Director General Philip Lowe will be replaced by Alexander Italianer, a Dutch economist with whom USEU has strong ties. EU perceptions of prior U.S.-EU divergences in approach on key competition issues may be exaggerated, but DG COMP's keen interest in engaging with new senior U.S. officials offers a good opportunity to deepen this important relationship. END COMMENT.

MURRAY









There are several cables related to this, but they do not show anything of particular interest, so we skip them.

Recent Techrights' Posts

Microsoft Uses LLM Slop to Defraud (or Rob) Shareholders
Microsoft is basically defrauding its shareholders by LLM slop
The "Davos Effect": Tarnishing the Reputation of Places Not by Overtourism But by Oligarch Infestation
The last Venice needs is an affiliation with Venetian oligarchs
 
Links 01/07/2025: "Independence Day in Taiwan", Bounties on Software Patents
Links for the day
What Happens When Your Law Firm is Preoccupied With Harassing and Trying to Extort a Humble Couple in Manchester, Even on Behalf of Violent Microsoft Staff From Another Continent
It's good to see that law firms which operate in bad faith are perishing
Lawyer X, Law Firm X and Elon Musk's X: scandals linked by Old Xaverian
Reprinted with permission from Daniel Pocock
Gemini Links 01/07/2025: Distraction-Free Writing and Hytale Mismanagement
Links for the day
Links 01/07/2025: "Beauty of Blogging" and "Etiquette of Collapse"
Links for the day
The Web is a Dead End
We need to adopt alternatives
When Words Lose Their Intended Meaning
examples of words that, at least in the technical spheres, don't mean what they sound like
People Who Disagree With You on Technical Matters May or May Not Agree With You on Political Things (But Usually They Do)
What bothers me a great deal is seeing left-leaning people accusing other left-leaning people of being "nazis"
"Too Much Choice" and "Too Many Programming Languages"
What IBM and its apologists aim for was attempted in the 1930s and it failed
Microsoft Lost 400,000,000 Windows Users, According to Microsoft
more people adopt smaller computers and many people replace Windows with GNU/Linux, as they don't really need a new computer
Half a Year Gone, What's to Come Next
In the second half of 2025 we expect to be done with the Microsoft SLAPPs
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 30, 2025
IRC logs for Monday, June 30, 2025
People at the Very Top of Microsoft Know How Bad Things Really Are
There's no product that can replace the former profitability of Windows licensing and stuff that went on top of Windows
Gemini Links 01/07/2025: Mid Year and a Tour of Old Languages
Links for the day
EPO Presentation Bemoans Misuse of Slop in Decision-Making on Patents and in Classification (Which is Likely Illegal Too)
We habitually mention failed use cases of LLMs on the Web
Mass Layoffs at Microsoft Confirmed, "XBox Hardware Is Dead"
It's possible that over 20% of the staff will be laid off
Links 30/06/2025: Kyrgyzstan vs Media Freedom, Dalai Lama Succession
Links for the day
Gemini Links 30/06/2025: Backend Programs in Gemini and Dynamic Content Without The Scripting
Links for the day
Links 30/06/2025: Zuckerberg’s Tax-Evading Scheme Harms Kids, US Copyright Office Lacks Leadership
Links for the day
Microsoft Isn't Laying Off Tens of Thousands to 'Invest' in Slop ('Hey Hi'), It's Laying Off Tens of Thousands Because It's Running Out of Money (and Willing Lenders)
the layoffs are a sign of the business failing, not "hey hi" (whatever that is) replacing staff
Intel Lays Off 20% of Its Workforce, Microsoft is Doing the Same This Year
Like a yoyo, whatever goes up will come back down
Microsoft XBox Layoffs: Almost 2,000 Layoffs Became "Over 2,000"? (Over 20% of the Staff)
over 20% of staff will be let go, not counting staff that leaves voluntarily
GNU/Linux Rises to New Highs in Angola, Africa in General is Abandoning Windows
Western media barely covers Microsoft layoffs in Africa, but in recent years Microsoft culled the workforce and even shut down entire operations
Summer Plans in Techrights and Elsewhere
massive layoffs at Microsoft
Destination Geminispace (in the Age of LLM Slop and Slop Images That Infest the Web and Social Control Media)
Geminispace isn't vast, but at least it is - on average - a lot "cleaner"
GNU/Linux Growing in Sierra Leone This Year
Based on what statCounter is seeing, this year there are more and more people there who adopt GNU/Linux
Serial Sloppers Gonna Slop
More sites out there ought to call out the cheaters
Quartz (qz.com) is Spam and a Slopfarm
It used to be OK. Then they fired the staff.
Links 30/06/2025: US Economic Woes, Extreme Heat
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 29, 2025
IRC logs for Sunday, June 29, 2025
Gemini Links 30/06/2025: "The AI Hype" and New AuraGem Ask
Links for the day
Our Desktops Are Not Your Experiments, X is Not an Experiment
Breaking what already worked
Microsoft's Big Lies Regarding This Week's Mass Layoffs Have Already Begun (and They're Already Being Spread by Slopfarms)
Microsoft is the "market leader" in slop
Explaining the Full Story of SLAPPs From Microsoft Staff
For every action there is a reaction, for every attack there will be proportionate consequences
The Openwashing Shills Initiative (OSI) - Part III: IRS and Status of OSI
"They lied to the US IRS and there’s a paper trail"
IBM Red Hat's Dogmatic Fanaticism Under a Thin Veil of "Modernism"
IBM now has the audacity to paint people who don't agree as "nazis"
Microsoft's Share in Guatemala Fell From 97% to 14%
Eventually Microsoft will get stuck in a loop of layoffs, layoffs, and more layoffs
They Made Technology Scary and Taught Us That It's Innocent, Friendly, Even "Social"
Rejection of all this "apps" and "gadgets" and "Smart" (whatever that means!) status quo isn't a rejection of society
The Media is Under Attacks Partly Because There's Little Other (Remaining) Press to Speak in Its Defence
The biggest danger here is that when there's very little press or no "opposition media" left it becomes even easier to crush critics because there aren't many people left to speak about the matter
If Your Web Site is Run by Bots, Eventually Nobody Will 'Read' It Except Bots (People Don't Want to Read Slop)
Eventually people learn from mistakes
Links 29/06/2025: Microsoft Releases False/Fake Benchmarks, "Google Wants You to Watch Ads or Take Surveys to Read Articles"
Links for the day
Links 29/06/2025: Data Breaches and Online Censorship
Links for the day
Gemini Links 29/06/2025: "The Price Of Eggs" and Gemini 3D Tic Tac Toe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 28, 2025
IRC logs for Saturday, June 28, 2025