"I would urge [the Commission] to impose the maximum fine, because the earlier fines weren't enough to get Microsoft's attention," said Lande.
Lande found it hard to understand why Microsoft's omission of the browser ballot didn't surface earlier. "It seems to me absolutely impossible that Google wouldn't have noticed," he said. "Google hates Microsoft with a passion, and they're one of the most sophisticated companies on the planet."
He also knocked the Commission for its preference to settle with violators, rather than threaten them with the full legal weight of EU antitrust law.
"If you're negotiating, you start from a position of saying, 'There's no chance of settling, even if it takes 20 years,'" said Lande. Instead, the Commission's expressed preference for settlements -- not just with Microsoft but also in the ongoing investigation into Google's business practices -- puts it in a weaker bargaining position.
"By talking settlements, [Almunia's] implying that he's a wimp," said Lande. "At a minimum, you'd have to be at the $5 billion mark to get Microsoft's attention," he said, referring to the amount the company spent settling the U.S. case. "And you could argue that even that wasn't enough to modify Microsoft's behavior."
Microsoft declined to comment on the New York Times story, but instead referred to a July 2012 statement in which it acknowledged that it had "fallen short in our responsibility," but also downplayed the missing ballot and said that as late as December 2011 it believed it was serving the screen to all users.
The latter claim, however, was at odds with a report on the company's own support site in March 2011, just weeks after the Windows 7 SP1's debut, that the browser ballot was AWOL. A Microsoft support representative ignored the customer's report.
The Commission did not respond today to a request for comment.
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