Brussels (Belgium) - The question currently facing antitrust regulators with the European Commission - one of the EU's two legislative bodies - is whether documents disclosed by Microsoft prior to the EC's 15 December deadline fulfill its requirements for enabling competitors to produce products "fully interoperable" with Windows. Last Thursday, the EC adopted another Statement of Objections, formally chastising Microsoft for not complying with the spirit of its March 2004 decision ordering Microsoft to help level the playing field with its competitors by, among other measures, releasing some of its secrets about how Windows works.

According to an EC press statement released in March 2004, "As regards interoperability, Microsoft is required, within 120 days, to disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers. This will enable rival vendors to develop products that can compete on a level playing field in the work group server operating system market. The disclosed information will have to be updated each time Microsoft brings to the market new versions of its relevant products."

Considerably more time than 120 days has passed since this ruling, but during that period, no one contests that Microsoft has released documentation. But EC statements claim that it has repeatedly asked Microsoft to make changes to that documentation, in order to, to borrow a phrase, "make it all make sense." And while the EC does not dispute that Microsoft did respond, it is the sensibility of what the company responded with, that is at issue.

Last Thursday, the EC released excerpts from the latest report from Dr. Neil Barrett, who was appointed as Monitoring Trustee last October. Referring to the apparent mountain of material Microsoft has turned over thus far, Dr. Barrett writes, "The documentation appears to be fundamentally flawed in its conception, and in its level of explanation and detail...Overall, the process of using the documentation is an absolutely frustrating, time-consuming and ultimately fruitless task. The documentation needs quite drastic overhaul before it could be considered workable."

To which a number of experts who have dealt with Microsoft technical documentation in the past might ask, "So what else is new?"

Late Thursday afternoon, Brad Smith, Microsoft's general counsel, released a response to the EC's Statement of Objections, alleging that neither Dr. Barrett nor anyone else at the EC had even read the company's latest revision. "By its own admission, stated Smith, "neither [the EC] nor the Trustee have even read or reviewed these new documents....We revised the technical documents last week at the Commission's request, responding to new feedback raised with us only six days before. In the interest of due process, we think it would have been reasonable for the Commission and the Trustee at least to read and review these new documents before criticizing them as being insufficient."

The EC's initial Thursday statement indeed referred to its decision as "preliminary," although did not state outright that the documentation had not been read. An FAQ document released by the EC following Smith's statement, includes the following: "The Commission understands that Microsoft has recently prepared revised documentation addressing only points relating to formatting (e.g. typos, missing hyperlinks), but not the general concerns about completeness and accuracy. That is the reason why it continues to be the Commission's conclusion that Microsoft is not in compliance with its obligations, i.e. that the technical documentation is not complete and accurate."

This raises an interesting concern, however: If the Commission can't make sense of the documentation it's read thus far, typos and missing hyperlinks notwithstanding, how can it be certain its content - jumbled though it may be - is inaccurate? What exactly is the standard the Commission intends to set? Would the documentation only make sense if it were to explain how Windows - a system which its competitors repeatedly allege was never designed to be interoperable in the first place - suddenly appeared interoperable?