EU denies Microsoft request for e-mails in antitrust case

BRUSSELS, Belgium — Microsoft said Wednesday that the European Commission had refused its plea to see documents it claims are necessary to defend itself against antitrust charges.

"We're very disappointed. The access to these documents is really fundamental," Microsoft associate general counsel Horatio Gutierrez said.

EU spokesman Jonathan Todd said an independent hearing officer, Karen Williams, had decided that correspondence between the commission and an independent monitor were "irrelevant for Microsoft's right of defense."

Williams also refused Microsoft's request to extend — for a second time — a Feb. 15 deadline to respond to EU charges that the company has failed to obey its antitrust order by being reluctant to share data with competitors.

"She refused the extension on the grounds that the time period of eight weeks should be sufficient for Microsoft," Todd said.

EU regulators have threatened Microsoft with fines up to 2 million euros ($2.36 million) a day, retroactive to Dec. 15.

Microsoft lawyer Ian Forrester wrote to the commission last week, saying it wanted to see e-mails between an EU official and a Microsoft-nominated trustee, Neil Barrett, who issued a damning report in December about the company's efforts to comply with the ruling.

Barrett found that 12,000 pages of technical documentation supplied by Microsoft needed a drastic overhaul to make it workable. Microsoft has agreed to make changes.

Williams rejected any allegation that Barrett may have altered his report after contact with regulators, saying there was no "undue influence."

In a second letter sent Wednesday, Forrester wrote that Microsoft was entitled to question the influence the commission's comments had on the content and phrasing of the trustee's final report.

Todd said an EU decision from October — which Microsoft did not contest — made correspondence between Barrett and the commission internal and confidential.

The dispute creates yet another battleground in an already complicated case. Microsoft can challenge the EU's decision to withhold documents at its appeal to the EU's 2004 antitrust ruling scheduled for late April. It has not yet decided to do so.

The EU levied a record 497 million euro ($613 million) fine against Microsoft in March 2004. It also ordered the company to share code with rivals and offer a version of Windows without the Media Player software for what the court saw as an abuse of the company's dominant position in the industry.