Microsoft Corp has reacted angrily to the European Commission’s refusal to give the company more time – or access to more documentation – in order to respond to a potential $2.4m daily antitrust fine.
The company has accused the Commission of riding roughshod over its rights by refusing Microsoft’s request for a second extension to a deadline to respond to accusations that it was not providing adequate interoperability information to enable non-Microsoft work group servers to work with Windows PCs and servers.
Last week the Commission said it was premature for Microsoft to allege they are riding roughshod over our rights of defense, said Horacio Gutierrez, associate general counsel for Microsoft Europe. Today we are less than a week away from the deadline for filing our response and have been denied access to the complete file, so I suppose it is now official and they are indeed riding roughshod over our defense rights.
Competition Commission spokesman, Jonathon Todd, had earlier confirmed that the previously extended deadline of February 15 would remain, while the independent hearing officer had turned down Microsoft’s request for access to more documentation related to how the Commission reached its decision to impose the daily fine.
Competition Commissioner Neelie Kroes announced in late December that the EC would begin fining the company for not providing adequate interoperability documentation after the EC’s monitoring trustee, was scathing in his review of Microsoft’s efforts so far.
Microsoft last week complained that it had only been granted access to 29 out of 100 relevant documents related to that decision, and 25 of those were part of correspondence between Microsoft and the EC.
The Commission can not unilaterally take away a fundamental right of defense, added Gutierrez. This would be the same as taking away the right to a hearing, or the right to respond to a statement of objections.
Gutierrez added that Microsoft believed the Commission was attempting to have its cake and eat it by considering its monitoring trustee and technical experts both internal experts and an independent source of authority.
If the trustee and OTR are just internal experts, their reports must be regarded only as Commission opinions and cannot be relied on as ‘evidence’ in the statement of objections, he said.
If the trustee and OTR are genuinely independent experts, then there should be full transparency and Microsoft has a right to access to the correspondence between the Commission and them which may have influenced their conclusions.
The EC has been unhappy about the technical documentation provided by Microsoft for the communications protocols it was obligated to license to third parties after it was found guilty of breaking European Union competition law in March 2004.