Last month, when Microsoft opened up the source code of its Windows Server operating system in an effort to appease the European Union, we warned that appeasement never works: When you try to bribe the school bully he comes back the next day.

Anyone interested in the current antitrust regulation is curious to know whether the European Commission will follow through its threats to impose fines amounting to 2,000,000 euro per day against Microsoft. One can only hope that Competition Commissioner Neelie Kroes will see sense, but unfortunately that does not appear to be the case.

At the end of the month there will be a hearing. The software maker has requested that the Commission discloses its communications with Microsoft’s rivals, who are partaking in the case against the software company. It seems only fair that the EU bureaucrats have to disclose what information it has got from the defendant’s attackers, especially since the aim of the EU’s antitrust policies is to protect competitors rather than consumers.

Kroes, following in the footsteps of her predecessor Mario Monti, is ready to launch new investigations against Microsoft for the company’s so-called “abuse of a dominant position.” Something that is supposedly ‘an objective concept.’ However, given the massive criticism of the Commission’s application of the antitrust policies it has become clear that its ‘objectivity’ is rather subjective. And if it is correct, as it seems, when Microsoft claims that it will be impossible for the company to comply with the ruling because the goalposts have continually been moved, then objectivity apparently will also depend on what day of the week it is.

Microsoft has complained that the Commission repeatedly changes its mind about what the ruling means – an accusation which the Commission unsurprisingly denies. Recently Microsoft has begun to question the independence of the decision-making. And given the competitor focus on the EU’s antitrust regulation it is highly plausible that the process has been compromised. The Commission “relies heavily on evidence from third parties to inform its decisions, thereby walking a fine line between information-gathering and prejudice. Up against a powerful opponent such as Microsoft, its position might be jeopardised if procedures were shown to be flawed,” as European Voice says in its latest issue.

One problem remains – the Commission has been so vocal about forcing Microsoft to toe the line that it would look rather foolish if it retracted its threat to fine. This of course will make it almost impossible for Neelie Kroes to admit that she was only bluffing when threatening to fine Microsoft 2 million euro per day.

More on this issue:

So Far Behind You Think You Are Ahead, 21 February 2006

Microsoft Surrenders to the EU Bully, 18 February 2006

Pullin’ a Putin, 4 January 2006

Europe’s Antitrust Policies: Bad for US and for Us, 31 December 2005

Microsoft Fights to Keep Source Code Closed, 11 September 2005