A missed opportunity to analyse a potential #abuse of a #dominantposition created by #publicprocurement (T-74/11)

In its Judgment in case T-74/11 Omnis Group v Commission (and Microsoft), the General Court of the European Union (GC) dismissed the appeal against the Decision of the European Commission (COMP/39.784 – Omnis/Microsoft) not to open a full investigation and rejecting the complaint submitted by Omnis  against Microsoft for the alleged abuse of its dominant position in certain software markets (in the EU and in Romania more specifically).

The appeal has several grounds and GC analyses in detail whether the Commission manifestly erred in its assessment of the facts or abused its discretion not to conduct a full investigation against Microsoft. The case is interesting to read (in French or Romanian only, unfortunately) for the detailed description of the elements and criteria the Commission must take into account before dismissing a complaint.

However, in connection with public procurement, it is interesting to note that, due to the poor information apparently submitted by the complainant, an important legal point was not explored by the Commission. To be fair, the arguments as presented by the Complainant are slightly far fetched, as they are based on the conclusion of a cartel-type agreement between Microsoft and the Romanian Government. As the Commission summarised it, 'Omnis Group [alleged] that Microsoft has entered into an illegal strategic partnership in contravention of Articles 101 and 106 TFEU with the Romanian Government which conferred an illegal monopoly on Microsoft in Romania and that such agreements amount to an illegal cartel or "cartel-type" behaviour(COMP/39.784, para 16)

In any case, the allegation that an exclusive right granted through public procurement (or in violation of the applicable rules) actually allowed Microsoft to distort competition (abusing a dominant position, or otherwise) seemed to require detailed scrutiny. DG COMP nevertheless brushed it aside: 'the complaint has been forwarded to the unit in charge of public procurement issues in the Commission's Internal Market Directorate General and to the European Anti-Fraud Office ("OLAF") in order to investigate the allegations which do not directly concern competition law. This decision will therefore solely address the competition law concerns raised in the complaint' (COMP/39.784, para 12).

Moreover, the Commission considered (maybe lightly) that the 'allegations that these mere procurement contracts would instate a monopoly of Microsoft in the relevant market or a cartel between the Romanian Government and Microsoft remain unsubstantiated by any reference to concrete provisions of these contracts and/or their anticompetitive implementation on the relevant market. It is therefore highly unlikely that an infringement of Articles 101 and Art 106 TFEU could be established on the basis of the information provided by the complainant(COMP/39.784, para 44). In my view, the Commission could have done more to access those contracts, which are bound to remain confidential and, consequently, out of reach for an independent complainant.

In that regard, I find it remarkable that the GC finds no fault in that approach:
98 The applicant maintains that Microsoft's dominant position on the Romanian market and its agreements with the Romanian State have the effect of requiring third parties to use Microsoft programs for compatibility reasons. This position on the Romanian [markets for certain business software products] prevents the existence and development of competitors. By ignoring the existence of such a dominant position, the Commission wrongly refused to consider this complaint.
99 On the one hand, to the extent that this argument is concerned with Article 102 TFEU, it should be noted that the reasons put forward are similar to those rejected in the context of the first plea [where the GC has backed the European Commission's view that Microsoft was not dominant in the relevant markets]. It is therefore necessary to reject this plea for the same reasons as those set out [...] above.
100 On the other hand, given that this plea aims to challenge the assessment carried out by the Commission under Articles 101 TFEU and 106 TFEU, this argument must also be rejected.
101 Indeed, in the contested decision, the Commission found that the allegations of strategic partnership with the Romanian government fell within the scope of the rules on public procurement and that the claims regarding Microsoft's monopoly or the existence of an agreement Microsoft and the Romanian government were not supported (see paragraph 15 above). The Commission has therefore concluded that it was highly unlikely that can be established a violation of Articles 101 TFEU and 106 TFEU on the basis of information provided by the complainant (T-74/11, paras 98-101, own translation from French and emphasis added).

In my view, and with the disadvantage of not having access to the file or the arguments presented by the complainant, this seems like a missed opportunity to further the joint enforcement of EU public procurement and competition rules and to assess whether public procurement rules (or agreements entered into in compliance, or not, with them) generated a negative market impact equivalent to the abuse of a dominant position. It seems to respond to a 'compartmentalised' or 'silo-based' enforcement structure by the European Commission (DG COMP seems to have brushed the procurement argument aside as if it was not relevant, at least within its sphere of action), which may need revision if public procurement and competition concerns are to be truly integrated and jointly enforced--which would bring about significant potential improvements.