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Throughout the six-year antitrust battle between the European Commission and the world’s biggest software group, the Brussels regulator has displayed a tendency to ruin Microsoft’s holidays.
Three times, the group’s lawyers were forced to spend a frantic August putting together their response to a Commission charge sheet filed just before the summer break. Last year, they spent the Christmas period studying a court ruling which upheld the Commission’s antitrust sanctions.
And on Thursday, they were preparing for yet another joyless winter break, after the regulator formally accused Microsoft of failing to comply with its landmark 2004 antitrust ruling.
Thursday’s move means the group’s legal experts will not be spending much time on the ski slopes.
For Microsoft as a whole, it means another severe blow to its reputation in Europe, and a further setback to its efforts to bring the long and arduous battle with the Brussels regulator to an end.
For much of the past six months, it had looked as if the two sides were gradually inching towards an agreement on compliance with the Commission’s 2004 anti-trust ruling.
In May, the group had even faced a similar deadline, but managed to put off fresh financial penalties after tabling suggestions on how finally to meet the Commission’s concerns.
Then, in October, the two sides agreed on a candidate for the post of “monitoring trustee” – the man charged with scrutinising Microsoft’s compliance with the 2004 ruling. Professor Neil Barrett, a British computer scientist, was among a batch of candidates proposed by the group. But although he had Microsoft’s support at the time, it now seems clear that he played a crucial role in persuading the Commission to take a tough stance.
In one of the reports he has submitted to the regulator in recent weeks, Prof Barrett states bluntly that Microsoft’s disclosure of technical information to rival companies was inadequate: “Any programmer or programming team seeking to use the technical documentation for a real development exercise would be wholly and completely unable to proceed on the basis of the documentation.” He added that the documentation was “totally unfit” for its purpose.
Microsoft had therefore failed to implement one of the central elements of the Commission’s 2004 decision – the order to license information about the workings of its Windows operating system to rival groups, to ensure that their server systems run smoothly with Windows-driven computers.
It was Prof Barrett’s assessment that tipped the Commission towards issuing an unprecedented fourth “statement of objections”, the formal charge sheet alleging an antitrust abuse.
Microsoft said on Thursday that it remained committed to implementing the 2004 ruling, but insisted the Commission’s interpretation of what that ruling meant was seriously flawed.
Brad Smith, its general counsel, said the group would “contest today’s statement to the full extent permitted under EU law, including a full oral hearing on these issues”.
The group’s determination to battle yesterday’s challenge will ensure the dispute drags on for longer than the five-week deadline set by the Commission yesterday. Moreover, any decision to impose fresh fines on Microsoft would require a formal Commission decision, which itself could be appealed.
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