Ex-judge in Microsoft/EU case surprised at fine

ST GALLEN, Switzerland (Reuters) - The judge who signed a landmark European antitrust ruling against Microsoft (MSFT.O) said on Thursday he was surprised by the large size of a record 899 million euro ($1.42 billion) fine imposed by the EU executive against the software company after he had retired.

"I was surprised at the size of the fine," said the former president of the Court of First Instance (CFI), Bo Vesterdorf. He stressed he had "no concrete knowledge" about the penalty imposed in February, five months after he left the court.

The European Commission imposed the fine for Microsoft's failure to carry out penalties imposed in a 2004 antitrust decision against the firm by the EU's executive arm. Microsoft has appealed against the fine to the Luxembourg-based CFI.

Vesterdorf was speaking on the sidelines of the St. Gallen International Competition Law Forum, sponsored by the University of St. Gallen, in Switzerland.

Earlier, he told the conference that although he signed the Microsoft judgment in September and was bound by secrecy, he understood "some of the worries" critics have expressed.

Vesterdorf said "one should be careful" not to encroach too much on patent rights "by a too-zealous enforcement of competition law".

"It may give rise to frivolous private litigation, create legal uncertainty for holders of IP (intellectual property) rights, thereby perhaps diminishing the incentives to sometimes desirable but very expensive research and development," Vesterdorf said.

Vesterdorf's remarks amplified views he expressed in March during a speech in London.

The 13-judge Grand Chamber of the European Union's second-highest court handed down a sweeping ruling in September, upholding the European Commission's tough 2004 decision saying Microsoft abused its dominance of PC operating systems to crush rivals. It also endorsed a 497 million euro fine.

Vesterdorf's long-planned retirement took effect later the same day, hours after the ruling.

Microsoft later announced it would not appeal against the ruling to the European Court of Justice (ECJ), the European Union's highest court, and Vesterdorf said on Thursday that was unfortunate.

"I do quite personally regret that the CFI judgment was not brought before the ECJ on appeal to have its final say on these important issues," he said.

Experts have said Microsoft's chances on appeal would have been slim.

Vesterdorf suggested the court would revisit the issue, calling the Microsoft case "unusual".

"Such cases unfortunately often make for not necessarily bad case law but at least case law that may not necessarily be the lasting or the last word."

(Editing by Dale Hudson)