The decision would appear to indicate a wide gap between American and European legal and business practices, with economic consequences that could reach well beyond the case itself. But legal experts say the divergent courses stem largely from politics and entirely different evidence, not any serious disagreement in antitrust philosophy.
"The Europeans do take a tougher general approach," said Robert Lande, a University of Baltimore law professor who has written extensively on antitrust issues. "But I don't think that makes a difference in this case. These are fundamentally different cases, not two enforcers looking at the same violation."
Both cases were built on the central charge that Microsoft abused its overwhelming dominance in the software markets. It is in the penalty phase of the EU prosecution that their differences are manifesting themselves most clearly today.
The severity of that penalty reflects a precept of European antitrust law that focuses more heavily on monopolists' effects on competing businesses rather than on consumers. As a result, European authorities have placed more emphasis on the way Microsoft's behaviour affected companies such as Sun Microsystems and RealNetworks than US regulators did in their case.
Concerned about maintaining viable competition, European regulators have considered how Microsoft's packaging of its Media Player with Windows has impeded rivals in the multimedia software market. By contrast, when the US Court of Appeals examined Microsoft's inclusion of its Internet Explorer browser with Windows as part of the Justice Department's case, the judges weighed consumer issues such as the potential for higher prices or poorer features.
Despite such variations, however, the cases are based on the same basic principles, with a goal of preserving a competitive marketplace that will ultimately benefit the consumer.
"The difference is overstated," a former EU Competition Commission official said. "The consumer is not going to benefit from competition if there is nobody left in the market."
Still, when the stakes are high, even slight philosophical differences can be magnified into vastly different practical results. European regulators have made clear that they expect their ruling to serve as precedent for future issues, which could include new Windows features, such as search or voice recognition -- areas the Justice Department has shown little interest in reviewing.
"This will be a precedent," the former EU official acknowledged. "Microsoft and other countries will now have it spelled out for them what the state of the law is."
