Microsoft settled antitrust case not knowing vote was 7 to 6

Washington: Microsoft may have made a mistake by settling anti-trust charges with the Eur-opean Union last year after losing an EU court ruling. The software maker didn't know it was one vote away from winning.

Judges voted 7-6 against Microsoft on September 17, 2007, according to two people with direct knowledge of the outcome. They declined to be identified because EU court votes are confidential. It should have appealed to try to end the European Commission's case once and for all, said Toan Tran, an analyst at Morningstar Inc in Chicago.

The close vote may indicate that EU courts aren't a rubber stamp for commission decisions. Knowledge of the split may influence US technology companies facing antitrust probes, such as Intel Corp. and Qualcomm Inc., in their legal battles.

"This will give some hope to companies facing the court in the future," said Thomas Jestaedt, a competition lawyer at law firm Jones Day in Brussels who has argued at EU courts. He's written more than 25 articles on antitrust law. "There's some likelihood that some of the other high-tech cases will go against the commission. There's a lot of uncertainty in this area."

Microsoft had sought to overturn a 497 million-euro ($719 million) fine stemming from a 2004 decision that it failed to offer rivals access to some data. The Redmond, Washington-based company didn't know about the divided vote until May, according to a person familiar with Microsoft's case.

Record fine

Five weeks after the European Court of First Instance's ruling last September, Microsoft agreed to disclose proprietary information on how Windows shares files and printers in an effort to put differences with the EU behind it.

In January, EU Competition Commissioner Neelie Kroes started investigations that encompass 80 per cent of Microsoft's business units. A month later, the commission imposed an additional, record 899 million-euro fine over the 2004 antitrust order.

Kroes, 67, has pursued Microsoft since her five-year term began in November 2004. She's maintained the EU antitrust authority's hard line on market dominance, blocking two mergers, including Ryanair Holdings Plc's 2007 bid for Aer Lingus Plc.

A successful appeal may have made the regulator reluctant to begin new probes, said Morningstar's Tran, who's covered Microsoft for three years and recommends buying the stock. He doesn't own any.

"They obviously misread the situation," Tran said. "No goodwill was earned."

Microsoft shares have fallen 8.3 per cent since the EU court ruling last year.