Will EC Antitrust Investigation Reveal Microsoft Malfeasance, or Just Incompetence?

The European Commission is starting a new antitrust investigation into allegations that Microsoft has reneged on a 2009 deal with the EC to offer users a choice of browsers – a self-admitted mistake that could cost the software vendor in fines and reputation.

Under a 2009 agreement with the EC, Microsoft’s Windows customers in Europe were supposed to see a dialog box with choices enabling them to select Internet Explorer, Firefox or Chrome. This agreement was reached to alleviate the EC’s fears that Microsoft wasn’t providing better access for Windows users to take advantage of other browser technology. The choice screen was meant to be in place for five years, into 2014.

Very, Very, Very Wrong Indeed

But the antitrust commission has discovered something quite different has transpired.

“…[T]he Commission believes that Microsoft may have failed to roll out the choice screen with Windows 7 Service Pack 1, which was released in February 2011,” a press release from the EC states.

Worse, not only did Microsoft omit the choice screen, it reported to the EC that the screen was actually in place.

“This is despite the fact that, in December 2011, Microsoft indicated in its annual compliance report to the Commission that it was in compliance with its commitments. From February 2011 until today, millions of Windows users in the EU may have not seen the choice screen,” the statement added.

For its part, Microsoft has fessed up to the problem.

“Microsoft has recently acknowledged that the choice screen was not displayed during that period,” the EC stated.

Just an Honest Mistake?

Of course, Microsoft is trying to keep its intent as pure as driven snow.

“Due to a technical error, we missed delivering the BCS [browser choice screen] software to PCs that came with the service pack 1 update to Windows 7,” Microsoft said in a statement to The Register.

According to Microsoft, the detection logic within the BCS application was not updated properly when Windows 7 SP1 was released 17 months ago.

Microsoft’s story sounds plausible… after all, the company could have hardly expected to sneak this one past the EC and an estimated 28 million European Windows 7 users. But it is not likely that the EC, which has long held a cynical view of Microsoft, will let this violation slip by with just a slap on the wrist. Indeed, the EC already seems readying its sanction weaponry.

“We take compliance with our decisions very seriously. And I trusted the company’s reports were accurate. But it seems that was not the case, so we have immediately taken action. If following our investigation, the infringement is confirmed, Microsoft should expect sanctions,” warned Joaquín Almunia, vice president of the commission in charge of competition policy.

How Did Everyone Miss It?

Accident or not, what is curious here is how the omission went unnoticed for so long. Almunia’s comments imply that the EC itself was relying on Microsoft’s self-reporting more than actually checking for itself to see if the company was in compliance. This seems barely understandable, since the EC probably doesn’t have the time or wherewithal to follow up on every antitrust compliance agreement and sanction they’ve made.

At best, this error is a revealing failure on the part of Microsoft’s legal and technical teams – the former for drafting a report to the EC without confirming the inclusion of the BCS in Windows 7, the latter for not doing basic QA to discover that an entire application wasn’t working.

At worst, Microsoft may have been taking the EC’s reliance on self-reporting for granted and, watching Internet Explorer’s usage share stats continuing to fall, figured it would try to boost IE’s numbers any way it could.

Admittedly, that’s a reach, but even if this is nothing more than a series of incompetent decisions – this kind of screwup could shake the faith of even the company’s fans and defenders.