The Commission has repeatedly claimed that Microsoft is violating its 2004 antitrust order and as recently as March accused it of breaking its conditions. One structural remedy is the enforced breaking up of a dominant company.
Neelie Kroes told the American Bar Association last week that Microsoft has refused to comply with the Commission's orders and that in cases where companies ignore orders, an escalation of punishments is necessary.
"We need to consider under which circumstances structural remedies would be more appropriate or even necessary to remedy certain competition problems," she said, when asked about what the Commission had learned about remedies in the Microsoft case.
"There could be a situation in which a dominant company has repeatedly abused its dominant position, or where it has consistently failed to comply with a behavioural remedy despite repeated enforcement action," said Kroes. "From this it could be reasonable to draw the conclusion that behavioural remedies are ineffective and that a structural remedy is warranted.
Kroes, a transcript of whose remarks was provided by her office, said that Microsoft fitted the description of a company which had not complied with Commission orders. "This is a highly exceptional circumstance – in 50 years of EU antitrust policy, we have never before encountered a company that has refused to comply with a Commission Decision," she said.
Microsoft this week handed in documents defending the licence fees it is charging competitors with whom it is sharing some of its technology under order from the European Commission. The Commission said in March that the high price at which Microsoft shared the code broke the terms of a 2004 order.
In 2004 Microsoft was found guilty by the Commission of behaving anti-competitively and was ordered to share elements of its source code. The Commission had ruled that the company was using its dominance in the desktop computer market to achieve unfair advantage in the workgroup server market.
Microsoft interpreted the order to share source code as permitting it to charge for the sharing. It charges companies according to the revenue from any software built using its technology and is charging fees of between $5.60 and $666.75 per server for its technology.
In March the Commission said that it believed that the high charges represented a violation of its order that code be shared on "reasonable terms". Microsoft submitted documents to the Commission this week which it said answered that charge.
Microsoft said that it had not requested an oral hearing on the matter, in an effort to end the dispute more quickly.
The break up of Microsoft was discussed once before, in the course of a US antitrust taken against the company. A federal court ordered that the company be broken up in order to curb its dominance of the PC operating system market, but that order was overturned on appeal.
