updated 2/8/2006 2:44:38 PM ET 2006-02-08T19:44:38

Microsoft Corp. said Wednesday 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. “It sets a very negative precedent for others.”

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.” (MSNBC is a Microsoft-NBC joint venture.)

“In contrast to Microsoft’s claim, the hearing officer considers their rights of defense have been properly safeguarded,” he said.

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 S. 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.

“The commission cannot simultaneously claim that a trustee is its own expert, with whom all exchanges are ’internal,’ and that he is an independent source of authority,” the letter said.

Microsoft said in a statement that if the trustee was a genuinely independent expert, full transparency should apply.

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

The company would be allowed to see documents deemed indispensable for it to understand the methodology the experts applied in their final reports or to verify their technical accuracy, he said. Williams had decided that the charge sheet Microsoft received in December contained enough information, he said.

Microsoft was allowed to see other documents detailing contact between EU regulators and other companies involved in the case after these firms waived their right to confidentiality. Todd said Williams described these “mostly of a mundane nature.”

Microsoft’s lawyer wrote to the commission last week, claiming the EU was unfairly holding back 71 out of the 100 documents in the case file.

Gutierrez said Wednesday the commission seemed to be moving away from promises to improve companies’ access to the antitrust file held by regulators. Access is determined by the independent hearing officer within the commission.

“This has implications not only for Microsoft,” he said. “We’ve received expressions of sympathy from other companies.

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 made any decision 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.

Microsoft is appealing the ruling and the case will be heard in April by the European Court of First Instance, the EU’s second-highest court.

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