Change proposed in EU Microsoft case

The top judge of the European Union's second-highest court has proposed changing judges in the Microsoft antitrust case, according to a letter sent to all parties in the case.

The move, shared with Reuters on Sunday by some of those who have seen the one-paragraph letter, comes after a storm of internal court criticism directed at the judge heading the Microsoft case because of a controversial article he wrote.

Court of First Instance President Bo Vesterdorf still needs approval of other members of the 25-judge court to move the case from the Second Chamber of the court to its Grand Chamber, which is considered highly likely.

Until now, French Judge Hubert Legal has been in charge of the case, along with fellow judges on the five-member panel.

But Legal published an article in the French journal Concurrences (Competition) saying that some of the judges' assistants—court clerks—tended to regard themselves as "ayatollahs of free enterprise" and should avoid an impression of "arbitrary power."

These young ayatollahs can gain a central role when they speak the language of deliberations—the working language of the court is French—better than the judges, the article said.

The article itself aroused widespread anger from the court clerks and angered some of the judges, according to people familiar with the situation there.

Reuters wrote about the piece in Concurrences on June 10. In an interview with Reuters on June 12, Judge Legal stressed his respect for other judges and defended the article.

"It is an attempt to make vivid for the academics a theoretical, intellectual problem which we have to face in the future," Legal said in the interview.

"There was no criticism intended of Bo Vesterdorf in particular and no criticism intended for the case law of the Court of First Instance or for the court itself," he said.

But that was not enough, according to people familiar with thinking at the court, and Vesterdorf acted.

The European Commission found in March 2004, that the software giant used its dominance to compete unfairly, fined it $608.8 million (497 million euros) and ordered that it change its business practices. Microsoft appealed that decision to the European Union courts.

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