14 DAY TRIAL // The Commission will consider carefully the response that Microsoft filed today following the Statement of Objections that the Commission adopted on 21 December 2005. That Statement of Objections concerned Microsoft's failure to comply with certain of its obligations under the March 2004 Commission Decision, 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, 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.
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 license to all potential licensees. On 10 February 2005, the Commission received a draft source code license 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 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 organization of the hearing is a matter for the Hearing Officer, and it 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.