Microsoft cancels oral hearing in EC browser-bundling case

The first week of June was slated to be an interesting one, in terms of the current browser-bundling antitrust case in the European Union involving Microsoft, Opera and a growing cast of interested third parties. But Microsoft officials said they've canceled their request for the oral hearing slated for June 3-5.

The first week of June was slated to be an interesting one, in terms of the current browser-bundling antitrust case in the European Union involving Microsoft, Opera and a growing cast of interested third parties.

But Microsoft officials said they've canceled their request for the oral hearing slated for June 3-5. The reason for the cancellation is detailed in a May 21 blog post by Microsoft Associate Deputy General Counsel David Heiner on the Microsoft on the Issues" blog.

The short version of the explanation: Microsoft requested the hearing to be rescheduled because the company believed that a number of the potential attendees were going to attend, instead, the International Competition Network (ICN) meeting in Zurich, which is slated for those same dates, June 3 to 5. (The European Commission is the one who chose the Microsoft hearing dates, according to the Redmondians.)

Because of the overlap in the dates, Heiner blogged:

"(I)t appears that many of the most influential Commission and national competition officials with the greatest interest in our case will be in Zurich and so unable to attend our hearing in Brussels. We raised concerns about this scheduling conflict with the Commission the very same day we were notified of the proposed hearing date. We asked the Commission to consider alternative dates and expressed our serious concern that holding a hearing during the same days as the ICN would make it much more difficult for the Commission’s and Member States’ key decision makers to attend. We pointed out that there’s no legal or other reason that the hearing needs to be held the first week of June.  We believe that holding the hearing at a time when key officials are out of the country would deny Microsoft our effective right to be heard and hence deny our “rights of defense” under European law.

"Unfortunately, the Commission has informed us that June 3-5 are the only dates that a suitable room is available in Brussels for a hearing. Thus, the Commission has declined to reschedule the hearing despite our offer to find and outfit a suitable room ourselves at another time."

(An aside: When the hearing date originally was announced, Microsoft officials said the company's request for an oral hearing was a formality more than a given. “To preserve right to have a hearing, need to ask by time you file your response. No decision has been made yet on whether we will actually pursue although Commission has set a date for a hearing if we pursue,” a spokesperson told me in early May.)

So what happens now? Will the European Commission issue accelerate its final ruling -- which more than a few observers are expecting will be in favor of Opera and possibly involve a hefty fine plus un-bundling remedies, based on the wording of the EC's preliminary findings in the matter -- with no further input?

If Microsoft had been successful in getting the hearing rescheduled to a later date, a delay might have helped the company (at least to a degree), given summer recess schedules for the courts. But once it became clear the EC wouldn't let the Softies reschedule, why not just go ahead and argue their case? (The New York Times has another piece of information, re: why Microsoft may have tried to seek a delay: "Any delay in the Microsoft case could have extended the outcome beyond the reach of Ms. Kroes, whose future as the Europe’s top competition official will depend on the outcome of June 7 European elections.")

(Update: EC officials, in refusing Microsoft's request for a new date, said they consider Microsoft to have withdrawn its oral hearing request. Microsoft officials said they do not agree with the EC's characterization of their date-change request as a "withdrawl." Don't you just love lawsuits?)

What's your gut? Do you think Microsoft's decision to cancel the scheduled June oral hearing may end up hurting the company more than helping it?