href=http://arstechnica.com/news.ars/post/20080414-microsoft-may-be-barred-from-eu-public-procurement-procedure.html Rühles complaint rests on the fact that Microsoft was convicted in 2004 of "abusing its dominant position in the software market, causing a huge damage both on competitors and consumers." Redmond appealed that decision, but the Court of First Instance (CFI) rejected the companys appeal in September, 2007. Microsoft chose not to appeal that ruling, which, according to Rühle, gives the courts decision res judicata status. The term refers to a situation in which the validity of the courts findings, and the evidence of Microsofts abuse, is considered settled and is no longer contested.
If the EU Parliament were to decide that the CFIs decision carries the strength of res judicata, Microsoft could be in for a spot of trouble. According to the body of rules that govern EU public procurement procedures, "Candidates or tenderers shall be excluded from participation in a procurement procedure if" they either "(b) they have been convicted of an offence concerning their professional conduct by a judgment which has the force of res judicata" or "(c) they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify."
Rühle doesnt shy away from the question of whether Microsoft has the right to participate in the EUs next round of public procurement considerations. After listing Microsofts various offenses since the corporations initial conviction, she writes: "could we therefore consider that Microsoft does not fulfil the conditions to participate in such public procurement procedure?" Despite the hostile tone, however, her question is best viewed as a tactical manuever rather than a full-fledged assault.
The EU is perfectly capable of finding ways to allow Microsoft to take part in the organizations public procurement procedures, and will most likely do so, if only for practical reasons. The threat of barring Microsoft from taking part in such activities is ultimately more useful than actually taking such an action. The question Rühle raises—which, incidentally, is probably a legitimate one, given the wording of the statute and Microsofts legal transgressions—is also an effective way of reminding Microsoft that the CFIs earlier fine did not mark the end of EU oversight or interest in the companys conduct.