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EU Commission Responds to Microsoft's Statement
Wednesday, February 15 2006 @ 08:29 PM EST

The EU Commission has responded to Microsoft's statement regarding its filing today claiming compliance. Microsoft's statement said this:
"Microsoft has complied fully with the technical documentation requirements imposed by a 2004 European Commission decision, and the Commission has ignored critical evidence in its haste to attack the company's compliance," the company said in a statement.

You can read Microsoft's full press release here. One mysterious detail is this:

The company also filed with the Commission two independent expert reports by software system engineering professors who examined the technical documentation created by Microsoft.

“We conclude that the interoperability information as provided by Microsoft meets current industry standards, particularly in such a complex domain. We believe that it has provided complete and accurate information, to the extent that this can be reasonably achieved, covering protocols, dependencies and implicit knowledge,” noted a 49-page report authored by five computer science professors in the United Kingdom and Germany.

Microsoft doesn't tell us who these mystery professors are. Of course, the EU Commission has its technical advisor, Neil Barrett, who has already said Microsoft's documentation was totally unfit for its purpose. Here's the EU Commission response in a press release, which seems significant enough to reproduce in full. I'm as cynical as the next person, or almost, but this is starting to look real to me.

***********************

Brussels, 15th February 2006

Competition: Commission confirms receipt of Microsoft’s reply to Statement of Objection

The Commission will consider carefully the response that Microsoft filed today following the Statement of Objections that the Commission adopted on 21 December 2005(see IP/05/1695). That Statement of Objections concerned Microsoft’s failure to comply with certain of its obligations under the March 2004 Commission Decision (see IP/04/382), and indicated the Commission’s preliminary view, supported by two reports from the Monitoring Trustee, that Microsoft had not yet provided complete and accurate specifications of the interoperability information which it is obliged to disclose under the March 2004 Commission decision. It is of course the European Commission that will decide whether Microsoft is compliant with the March 2004 Decision, and not Microsoft.

Following the rejection by the Court of First Instance of Microsoft’s request for interim measures on 22 December 2004 (see MEMO/04/305), Microsoft was obliged to comply with the March 2004 Commission decision. Since then the Commission has repeatedly reminded Microsoft of the need to provide complete and accurate specifications. To cite an example, in June 2005 the Commission sent to Microsoft a first report by the Commission’s experts, where very serious doubts were expressed as to the completeness and accuracy of the technical documentation.

In assessing the completeness and accuracy of the technical documentation, the Commission is being assisted by the Monitoring Trustee, a reputed British computer science professor whose appointment by the Commission was suggested by Microsoft (see IP/05/1215).

In its press statement issued today, Microsoft alleges that neither the Commission nor the Monitoring Trustee had read the latest version of the technical documents ”made available” by Microsoft (in Redmond USA) on 15 December. In fact this documentation was actually supplied on 26 December to the Commission, 11 days after the 15 December deadline and 5 days after the Statement of Objection was sent. As Microsoft's General Counsel had announced in a letter of 15 December 2005 this new technical documentation indeed addressed only "formatting issues" raised by the Monitoring Trustee. It was not therefore substantially different from that which the Commission examined in the context of the Statement of Objections.

Microsoft also announced to the press on 25 January 2005 that it was offering a source code licence to all potential licensees. On 10 February 2005, the Commission received a draft source code licence from Microsoft, which the Monitoring Trustee is considering and which is currently the subject of a market test.

The Commission notes that Microsoft is not obliged to disclose source code under the March 2004 Commission decision. As Commissioner Kroes pointed out at the time Microsoft made the announcement, source code is not necessarily a solution to respond to Microsoft’s failure to provide complete and accurate specifications. Source code could at best complement the provision of complete and accurate specifications, in line with the Commission 2004 Decision. The onus is on Microsoft to explain in their reply to the Statement of Objections to explain precisely how and why the source code offer is relevant to ensuring their compliance with the March 2004 Decision.

Microsoft has requested an Oral Hearing. The organisation of the hearing is a matter for the Hearing Officer, and a hearing is likely to take place in the coming weeks. As in any other investigation, the Commission is fully committed to guarantee due process.

After the Oral Hearing and after consulting the Advisory Committee of Member State Competition Authorities, the Commission may then issue a decision for non-compliance pursuant to Article 24(2) of Regulation 1/2003 imposing a fine on Microsoft for every day between 15 December 2005 and the date of that decision. In the case of continued non-compliance, the Commission may then take other steps to continue the daily fine until Microsoft complies with the March 2004 decision.


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