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EU denies extension for Microsoft

Comply by 15 February or get fined

Microsoft moved a step closer to being fined about €1m a day after the EC (European Commission) refused to extend a 15 February deadline for compliance with its antitrust ruling.

The software giant had asked for an extension until 28 February to respond to charges that it failed to meet its demands for ensuring interoperability between its server software and competing products.

But the EC official dealing with the case, known as the hearing officer, decided yesterday not to grant a further extension, an EC spokesman said.

"She took the view that a time period of eight weeks should be sufficient for Microsoft to reply to a comparatively short statement of objections," said Jonathan Todd, referring to the document that sets out the concerns over Microsoft's compliance efforts.

The EC also denied Microsoft's request for access to correspondence between the EC, its internal technical advisors and an independent trustee monitoring the company's compliance efforts.

"The hearing officer maintained her position that the correspondence is internal and in principle irrelevant for the purposes of Microsoft's rights of defence," Todd said today.

Microsoft argues that by refusing to grant it access to the documents, the EC is denying it the ability to mount an effective defence.

"Last week the EC said it was premature for Microsoft to allege they are riding roughshod over our rights of defence," said Horacio Gutierrez, Microsoft Europe's associate general counsel. "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 defence rights."

Todd maintained that if the report of the monitoring trustee, which the EC will use to justify fining the company for non-compliance, is factually wrong, Microsoft would be able to prove this without needing access to the internal correspondence.

The EC's complaint is that Microsoft has failed to comply with one part of its March 2004 antitrust ruling, which ordered the Redmond company to ensure interoperability between its workgroup server software and competing products.

It asked the firm to provide adequate documentation on the server software's communications protocols. The EC says the company has failed to do this, and it seems unlikely to accept an offer by Microsoft to grant access to the source code for the communications protocols.

With six days to the deadline, it appears unlikely that Microsoft will perform a U-turn and meet the demands, although it is expected to reply to them formally. The company will also request a hearing to present its arguments. The EC would not start to impose the fines until after the hearing, which is likely to start in a couple of weeks.

A decision to fine the company has to be approved by all of the EU's (European Union's) 25 commissioners. The fines would be back-dated to 15 December.

The EC is expected to issue a second statement of objections in the near future, challenging the prices Microsoft is charging for access to its communications protocols.


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