09.08.11

Gemini version available ♊︎

Cablegate: Former Microsoft Lawyer Thomas Barnett and Majoras Butt Heads With EU Commission Over Microsoft Case

Posted in America, Antitrust, Europe at 4:08 am by Dr. Roy Schestowitz

Cablegate

Summary: Pressure from the US for Neelie Kroes et al. to leave Microsoft alone despite abusive behaviour

THE FOLLOWING Cablegate cable is interesting for several reasons. First of all, Deborah Platt Majoras, whom we wrote about before in a negative context (conflicts of interest, improper job handling, etc.) is seen defending Microsoft just like she let Intel off the hook despite crimes. More interesting, however, is Thomas Barnett appearing there. He is batting for Microsoft of course (we wrote about his professional relationship with Microsoft in the past). This is similar to those cables which show the US politicians pressuring the EU to approve Sun’s takeover, not quite respecting the independence of other parts of the world.


VZCZCXRO0066
PP RUEHAG RUEHDF RUEHIK RUEHLZ RUEHPOD RUEHROV
DE RUEHBS #3241/01 2990952
ZNR UUUUU ZZH
P 260952Z OCT 07
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC PRIORITY
RUCPDOC/USDOC WASHDC PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
RUCNMEU/EU INTEREST COLLECTIVE
RUEHKO/AMEMBASSY TOKYO
RUEHUL/AMEMBASSY SEOUL
UNCLAS SECTION 01 OF 02 BRUSSELS 003241 
 
SIPDIS 
 
DOC FOR DEFALCO 
FTC FOR JOHN PARISI 
DOJ FOR CALDWELL HARROP 
 
STATE FOR EUR/ERA, EB/IPE, EB/TPP/MTA 
 
PLEASE PASS TO USTR - DAVID WEINER 
 
SENSITIVE BUT UNCLASSIFIED - ENTIRE TEXT 
PROPRIETARY BUSINESS INFORMATION - PLEASE PROTECT ACCORDINGLY 
 
NOT FOR INTERNET DISTRIBUTION 
 
SIPDIS 
 
E.O. 12958:  N/A 
TAGS: ECIN, KIPR, ECPS, EINT, ETRD, EINV, ECON, EUN 
SUBJECT: FTC CHAIRMAN MAJORAS REVIEWS MICROSOFT CASE IMPACTS WITH 
BRUSSELS ATTORNEYS 
 
REF : USEU BRUSSELS 2933 
 
1.  SUMMARY.  FTC Chairman Majoras and Ambassador Gray reviewed U.S. 
and EU competition developments with nine prominent Brussels 
attorneys on Oct. 19.  The group focused on the EU victory in its 
antitrust case against Microsoft, but also covered pending EU cases 
against other tech firms.  Majoras and most participants agreed the 
Microsoft case underlines a strengthening divergence between U.S. 
and EU approaches to dominance cases.  Majoras discounted a theory 
that U.S. foreign and domestic political difficulties may have 
allowed the EU to assume global leadership on antitrust policy.  END 
SUMMARY. 
 
MAJORAS COVERS MICROSOFT WITH BRUSSELS ATTORNEYS 
--------------------------------------------- --- 
 
2.  Federal Trade Commission (FTC) Chairman Deborah Platt Majoras, 
in town for a European Competition Journal event, met for breakfast 
October 19 with nine of Brussels' leading competition policy 
attorneys.  Also attending for the USG were: U.S. Ambassador to the 
European Union C. Boyden Gray; Randall Long, Attorney-Advisor to 
Chairman Majoras; and Econoff (notetaker).  The attending attorneys 
and represented firms included: Ian Forrester, White and Case; 
Maurits Dolmans, Cleary Gottlieb; David Hull, Covington and Burling; 
Sven Volcker, WilmerHale; Stephen Kinsella, Sidley and Austin; 
Hendrik Bourgeois, GE; Jim Venit, Skadden Arps; David Wood, Gibson 
Dunn; and Thomas Vinje, Clifford Chance. 
 
3.  Ms. Majoras reviewed recent U.S. antitrust developments, noting 
a possible trend in U.S. courts to raise the bar for blocking 
mergers, but quickly turned to the situation in the EU.  She said 
she had conferred closely with Thomas Barnett, DOJ Assistant 
Attorney General for Antitrust, on potential implications of the 
recent European Court of First Instance (CFI) ruling upholding the 
European Commission's major 2004 antitrust decision against 
Microsoft (reftel).  Majoras noted that EU Competition Commissioner 
Neelie Kroes reacted strongly to the Barnett/DOJ statement on the 
CFI decision, which indicated "it could harm consumers and have a 
chilling effect on innovation." 
 
4.  Despite Kroes' sensitivity to criticism over the Microsoft case, 
Majoras continued, FTC and DOJ, as the two U.S. antitrust agencies, 
maintain good relations with their European counterparts.  She 
stressed the strength of her personal relationships, for example, 
with Commissioner Kroes and Director General of the Competition 
Directorate (DG COMP) Philip Lowe.  She pointed out that FTC and DOJ 
will have annual bilateral consultations in 10 days with the 
Commissioner, Lowe, and their staff. 
 
5.  Majoras said her concern centers on the increasing divergence, 
in her view, between the trends of U.S. and EU antitrust policies 
and court decisions in the area of single-firm conduct.  Even 
Microsoft opponents in the U.S., she underscored, are wondering if 
the outcome of the case will embolden the Commission to pursue more 
aggressively cases against other market-leading technology firms, 
most of whom are American.  Ambassador Gray noted the contrast 
between DG Competition's action against U.S. firms, and timidity in 
addressing the anti-competitive nature of aggressive Gazprom efforts 
to purchase EU gas distribution networks. 
 
U.S. AND EU DIFFER IN "CULTURAL APPROACHES" TO ANTITRUST 
--------------------------------------------- - 
 
6. Jim Venit of Skadden Arps agreed that it is striking that most of 
the Commission's cases against multinationals (Note: including 
existing antitrust cases against Intel, Rambus and Qualcomm, and an 
investigation of Apple.  End note.) involve U.S. firms.  He 
explained, however, that it is important to look at Commission 
actions in the context of the "cultural differences" across the 
Atlantic - a greater tradition of regulatory intervention in the EU 
as compared to the U.S.  This manifests itself in both Commission 
action and greater EU court eagerness to intervene, he said. 
 
 
BRUSSELS 00003241  002 OF 002 
 
 
7.  The best way to approach antitrust cases, Venit continued, would 
be to stand back and weigh the relative economic impacts of both 
alleged abuses and potential remedies.  Majoras agreed that this is 
important, but stressed that it is difficult to determine.  She 
noted that applying EU and U.S. antitrust laws pertaining to 
single-firm conduct (Article 82 of the EC Treaty and the relevant 
part - "Section 2" - of the U.S. Sherman Act, respectively) 
correctly is the hardest job for an antitrust enforcer.  It is a 
challenge to avoid both overenforcement and underenforcement, she 
concluded, and a jurisdiction's tolerance for one or the other 
determines the level of enforcement. 
 
8. David Wood of Gibson Dunn agreed with both Venit and Chairman 
Majoras, saying that the different cultural approach to antitrust in 
the EU underlies the divergence here from U.S. action.  Article 82, 
he noted, in looking at dominance cases, does not address how 
companies achieved monopoly status.  He contrasted the case of firms 
which came to dominate markets through innovation and business 
acumen, versus those arriving via privileged position as a 
state-owned firm.  The distinction is important in U.S. decisions on 
antitrust, he said. 
 
9.  Maurits Dolmans of Cleary Gottlieb (Note: who represents both 
IBM and Google, Microsoft opponents in its EU case. End note.) 
argued that the CFI ruling and 2004 Commission decision against 
Microsoft actually brings U.S. and EU law closer together, rather 
than representing a divergence.  He said the bases for the CFI 
decision closely resemble findings of the DC circuit court from the 
U.S. case against Microsoft several years ago.  He noted that EU 
competition law, in the form of Articles 81 and 82 of the founding 
EC Treaty, were written by a U.S. lawyer and based on the relevant 
Sections 1 and 2 of the FTC Act.  It is important to remember the 
similarities in legal bases, Dolmans said, and maintain a positive 
tone in responding to EU antitrust actions. 
 
MAJORAS DISAGREES THAT EU HAS ASSUMED ANTITRUST LEADERSHIP 
--------------------------------------------- -- 
 
10.  Ian Forrester of White and Case (Note: who has represented 
Microsoft in its EU case.  End note.) then asked Chairman Majoras 
her view of the theory, which he said is favored by some in 
Brussels, that political difficulties faced by the U.S. 
administration in foreign policy (e.g. Iraq) or domestically have 
weakened U.S. antitrust enforcement.  This, according to theory 
proponents, has allowed the EU to assume the mantle of antitrust 
leadership and let the EU set the global standard for antitrust 
actions. 
 
11.  Hendrik Bourgeois of GE agreed that this idea has taken root in 
Brussels, noting that a "senior DG COMP official" told him recently 
that the U.S. and EU are competing over antitrust policy - "and the 
EU is winning." 
 
12.  Majoras vigorously disputed the idea, saying that FTC under her 
tenure has initiated more merger cases (as a percentage of H-S-R 
filings) against firms than had the Clinton Administration. 
Moreover, Majoras emphasized that the number of cases brought is not 
as important as bringing analytically sound cases.  The Ambassador 
called the idea an "extraordinary," unfounded assertion.  Majoras 
added that the U.S. doesn't consider itself in competition with the 
EU over antitrust policy, but rather wants to continue dialogue to 
ensure that actions are in the best interest of consumers and firms. 
 Nearly all of the participants agreed that continued U.S.-EU 
dialogue is vital to prevent future problems. 
 
13.  FTC Chairman Majoras has cleared this cable. 
 
GRAY 


The emphases above are ours.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. IRC Proceedings: Monday, January 24, 2022

    IRC logs for Monday, January 24, 2022



  2. Links 25/1/2022: GPL Settlement With Patrick McHardy, Godot 4.0 Alpha 1, and DXVK 1.9.4 Released

    Links for the day



  3. Proprietary Software is Pollution

    "My daughter asked me about why are we throwing away some bits of technology," Dr. Andy Farnell says. "This is my attempt to put into words for "ordinary" people what I tried to explain to a 6 year old."



  4. Microsoft GitHub Exposé — Part XV — Cover-Up and Defamation

    Defamation of one’s victims might be another offence to add to the long list of offences committed by Microsoft’s Chief Architect of GitHub Copilot, Balabhadra (Alex) Graveley; attempting to discredit the police report is a new low and can get Mr. Graveley even deeper in trouble (Microsoft protecting him only makes matters worse)



  5. [Meme] Alexander Ramsay and Team UPC Inciting Politicians to Break the Law and Violate Constitutions, Based on Misinformation, Fake News, and Deliberate Lies Wrapped up as 'Studies'

    The EPO‘s law-breaking leadership (Benoît Battistelli, António Campinos and their corrupt cronies), helped by liars who don't enjoy diplomatic immunity, are cooperating to undermine courts across the EU, in effect replacing them with EPO puppets who are patent maximalists (Europe’s equivalents of James Rodney Gilstrap and Alan D Albright, a Donald Trump appointee, in the Eastern and Western Districts of Texas, respectively)



  6. Has the Administrative Council Belatedly Realised What Its Job in the European Patent Organisation Really Is?

    The "Mafia" which took over the EPO (the EPO's own workers call it "Mafia") isn't getting its way with a proposal, so it's preventing the states from even voting on it!



  7. [Meme] Team UPC is Celebrating a Pyrrhic Victory

    Pyrrhic victory best describes what's happening at the moment (it’s a lobbying tactic, faking/staging things to help false prophecies be fulfilled, based on hopes and wishes alone), for faking something without bothering to explain the legal basis is going to lead to further escalations and complaints (already impending)



  8. Links 24/1/2022: Scribus 1.5.8 and LXLE Reviewed

    Links for the day



  9. IRC Proceedings: Sunday, January 23, 2022

    IRC logs for Sunday, January 23, 2022



  10. [Meme] Team UPC Congratulating Itself

    The barrage of fake news and misinformation about the UPC deliberately leaves out all the obvious and very important facts; even the EPO‘s António Campinos and Breton (Benoît Battistelli‘s buddy) participated in the lying



  11. Links 24/1/2022: pgBadger 11.7 Released, Catch-up With Patents

    Links for the day



  12. The Demonisation and Stereotyping of Coders Not Working for Big Corporations (or 'The System')

    The war on encrypted communication (or secure communications) carries on despite a lack of evidence that encryption stands in the way of crime investigations (most criminals use none of it)



  13. On the 'Peak Hacker' Series

    Hacker culture, unlike Ludditism, is ultimately a movement for justice, for equality, and for human rights through personal and collective emancipation; Dr. Farnell has done a good job explaining where we stand and his splendid series has come to a close



  14. Links 23/1/2022: First RC of Linux 5.17 and Sway 1.7 Released

    Links for the day



  15. Peak Code — Part III: After Code

    "Surveillance perimeters, smart TVs (Telescreens built to Orwell's original blueprint) watched over our living rooms. Mandatory smart everything kept us 'trustless'. Safe search, safe thoughts. We withdrew. Inside, we went quietly mad."



  16. IRC Proceedings: Saturday, January 22, 2022

    IRC logs for Saturday, January 22, 2022



  17. Links 23/1/2022: MongoDB 5.2, BuddyPress 10.0.0, and GNU Parallel 20220122

    Links for the day



  18. A Parade of Fake News About the UPC Does Not Change the General Consensus or the Simple Facts

    European Patents (EPs) from the EPO are granted in violation of the EPC; Courts are now targeted by António Campinos and the minions he associates with (mostly parasitic litigation firms and monopolists), for they want puppets for “judges” and for invalid patents to be magically rendered “valid” and “enforceable”



  19. Welcome to 2022: Intentional Lies Are 'Benefits' and 'Alternative Facts'

    A crooks-run EPO, together with the patent litigation cabal that we’ve dubbed ‘Team UPC’ (it has nothing to do with science or with innovation), is spreading tons of misinformation; the lies are designed to make the law-breaking seem OK, knowing that Benoît Battistelli and António Campinos are practically above the law, so perjury as well as gross violations of the EPC and constitutions won’t scare them (prosecution as deterrence just isn’t there, which is another inherent problem with the UPC)



  20. From Software Eating the World to the Pentagon Eating All the Software

    “Software is eating the world,” according to Marc Andreessen (co-founder of Netscape), but the Empire Strikes Back (not the movie, the actual empire) by hijacking all code by proxy, via Microsoft, just as it grabbed a lot of the world’s communications via Skype, bypassing the world's many national telecoms; coders need to fight back rather than participate in racist (imperial) shams such as GitHub



  21. Links 22/1/2022: Skrooge 2.27.0 and Ray-Tracing Stuff

    Links for the day



  22. IRC Proceedings: Friday, January 21, 2022

    IRC logs for Friday, January 21, 2022



  23. Peak Code — Part II: Lost Source

    "Debian and Mozilla played along. They were made “Yeoman Freeholders” in return for rewriting their charters to “work closely with the new Ministry in the interests of all stakeholders” – or some-such vacuous spout… because no one remembers… after that it started."



  24. Links 22/1/2022: Ubuntu MATE 21.10 for GPD Pocket 3, MINISFORUM Preloads GNU/Linux

    Links for the day



  25. Computer Users Should be Operators, But Instead They're Being Operated by Vendors and Governments

    Computers have been turned into hostile black boxes (unlike Blackbox) that distrust the person who purchased them; moreover, from a legislative point of view, encryption (i.e. computer security) is perceived and treated by governments like a threat instead of something imperative — a necessity for society’s empowerment (privacy is about control and people in positions of unjust power want total and complete control)



  26. Peak Code — Part I: Before the Wars

    Article/series by Dr. Andy Farnell: "in the period between 1960 and 2060 people had mistaken what they called "The Internet" for a communications system, when it had in fact been an Ideal and a Battleground all along - the site of the 100 years info-war."



  27. Links 21/1/2022: RISC-V Development Board and Rust 1.58.1

    Links for the day



  28. IRC Proceedings: Thursday, January 20, 2022

    IRC logs for Thursday, January 20, 2022



  29. Gemini Lets You Control the Presentation Layer to Suit Your Own Needs

    In Gemini (or the Web as seen through Gemini clients such as Kristall) the user comes first; it's not sites/capsules that tell the user how pages are presented/rendered, as they decide only on structural/semantic aspects



  30. The Future of Techrights

    Futures are difficult to predict, but our general vision for the years ahead revolves around more community involvement and less (none or decreased) reliance on third parties, especially monopolistic corporations, mostly because they oppress the population via the network and via electronic devices


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts