Microsoft Accuses EU Of Collusion With Competitors In Antitrust Dispute

by Ulrika Lomas, for LawAndTax-News.com, Brussels

07 March 2006

In a supplementary response to the EC's antitrust allegations against it, published on Thursday, Microsoft has alleged that the Commission colluded with both the trustee appointed to examine Microsoft's proposals and some of its rival firms.

The EC in December issued a Statement of Objections against Microsoft for its failure to comply with certain of its obligations under the March 2004 Commission decision, which found Microsoft to have infringed the EC Treaty rules on abuse of a dominant position by leveraging its near monopoly in the market for PC operating systems onto the markets for work group server operating systems and for media players.

One of the remedies imposed by the decision was for Microsoft to disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers. However, trustee Neil Barrett stated that the information provided by the software giant was not adequate in the form in which it was submitted.

In its supplementary response, Microsoft announced that:

"In the evening of 13 February 2006, the Commission finally gave Microsoft copies of certain correspondence between the Commission and four American-based companies who have long been Microsoft’s adversaries in various judicial and regulatory proceedings. Microsoft had requested this correspondence seven weeks earlier, on 23 December 2005, but the Commission delayed giving it to Microsoft until two days before Microsoft’s deadline for responding to the Statement of Objections dated 21 December 2005."

This correspondence is of direct relevance to Microsoft’s defense to the allegations set forth in the Statement of Objections concerning Microsoft’s alleged failure to provide Interoperability Information in accordance with the Commission’s Decision of 24 March 2004."

It continued:

"The picture that emerges from a review of the correspondence disclosed on 13 February is that the Commission, the Trustee, and Microsoft’s adversaries were actively collaborating throughout the Fall of 2005 in a manner inconsistent with the Commission’s role as neutral regulator and the Trustee’s role as independent monitor."

"This correspondence shows that the Commission facilitated and, at times, initiated contacts between the adversaries and the Trustee that violated the letter and the spirit of the Commission’s Decision on the Monitoring Trustee Mandate. Indeed, the documents released on 13 February show that the Commission actively encouraged Microsoft’s adversaries to “educate” the Trustee in a manner detrimental to Microsoft."

"Giving the Trustee this kind of “education” is clearly inconsistent with an impartial process under which the Trustee approaches his task with an open mind. In addition, it places the Trustee more in the role of the Commission’s co-prosecutor than that of an independent monitor of Microsoft’s compliance."

The statement continued:

"A number of documents reveal inappropriate contacts between Microsoft’s adversaries and the Trustee. For example, the Commission tried to initiate a meeting between the Trustee and one of Microsoft’s adversaries, and the complainant in the proceeding leading up to the adoption of the 2004 Decision."

"The purpose was to give the Trustee “a first impression of what is at stake” and to “introduce Mr. Barrett to the issues.”...An impartial observer might well question the appropriateness of this extensive lobbying of a supposedly neutral expert by a Microsoft adversary."

The Commission has not yet formally responded to Microsoft's allegations. It is expected to deliver a decision on whether to impose EUR2 million daily fines on the software firm for non-compliance with the 2004 ruling at the end of this month.

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