The top judge of the European Union's second-highest court has proposed changing judges in the Microsoft Corp. antitrust case, according to a letter sent to all parties in the case.
The move, shared with Reuters Sunday by some of those who have seen the one-paragraph letter sent Friday, comes after internal court criticism directed at the judge heading the Microsoft case because of a controversial article he wrote. (MSNBC is a Microsoft-NBC joint venture.)
The letter lays out plans by Court of First Instance President Bo Vesterdorf to transfer the case away from the current judge and panel to a larger panel which Vesterdorf will head.
The European Commission found in March 2004 that Microsoft used its dominance to compete unfairly, fined the world's No. 1 software company 497 million euros ($608.8 million) and ordered it to change its business practices.
Microsoft sued and its case has been making its way through the Court of First Instance in Luxembourg before a five-judge panel headed by Judge Hubert Legal.
But Legal got into hot water at the court after he published an article in the French journal Concurrences (Competition) saying that some of the judges' 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. That angered judges and clerks at the court, numerous sources said.
Reuters wrote about the Concurrences piece June 10. Legal said in an interview with Reuters on June 12 that he had great respect for the court.
But that was not enough to forestall the change. All members of the 25-judge court will meet to vote on Vesterdorf's proposals, once those who received the letter offer their comments by Friday.
The move to the court's Grand Chamber, headed by Vesterdorf, will give him a lot more power over the case. The new Grand Chamber panel is to include the existing five-member panel, heads of other chambers and four senior judges.
Until now, Legal has headed the case but Vesterdorf would choose who handles it going forward. It could be Vesterdorf himself or another member of the court.
It is not clear what the effect will be on the timing or the outcome of the case as new judges are brought up to speed. Legal had been aiming to complete it by mid-2006, which is considered quick by the court's standards.
Vesterdorf already has some familiarity with the case because he heard Microsoft's unsuccessful attempt last year to suspend sanctions until the case was complete. But many other judges will be starting from scratch.
Some at the court are wondering why Legal wrote the piece for the French specialty magazine. In his interview with Reuters, Legal explained his reasons.
"It is an attempt to make vivid for the academics a theoretical, intellectual problem which we have to face in the future," Legal said.
"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.
Legal's troubles recall those of the judge in the U.S. Microsoft case, U.S. District Judge Thomas Jackson.
Jackson gave interviews to reporters during the course of the trial, with the understanding that they would not be published until after the trial was over.
An appellate court in 2001 upheld some parts of Jackson's decision, rejected others, but chastised the judge for meeting with reporters and removed him from the case. The case was taken over by another judge.
