Microsoft has found a loophole to duck out of the European Commission's €2m daily fine, claiming that the Commission has "ignored critical evidence".

The Commission said in a statement that Microsoft filed the evidence in question 11 days after an imposed deadline in December. This was after the Commission had called for a Statement of Objections to fine the company.

Microsoft has also exercised its right to an oral hearing before the Commission decides whether to impose the fine. The Commission said that the hearing would be held in the coming weeks.

The software giant had been given until 15 February to explain why it should not be fined for failing to carry out sanctions imposed in March 2004 for using its Windows software monopoly to push out smaller competitors.

In a nine-paragraph statement about its 75-page confidential filing, Microsoft claimed that when the Commission issued the Statement of Objections it "had not even bothered to read the most recent version of those documents which Microsoft had made available on 15 December 2005".

The Commission is currently testing Microsoft's plans to offer access to source code, the blueprint for the company's software.

Microsoft was asked to provide directions that allowed rival makers of server software to interconnect with Windows desktop machines as easily as Microsoft's own server software.

The Commission stated that the directions were not workable, but Microsoft disagreed in its formal response.

Microsoft said that part of the problem was that the Commission "repeatedly refused to clearly define its requirements and concerns, despite repeated requests and accommodations by Microsoft".

While Redmond did offer to show its source code to licensees, the Commission said that the source code licence is being tested with customers and evaluated by the monitoring trustee, chosen by the Commission from several nominated by Microsoft.

But the source code offer does not sit well with the Commission. Even before Microsoft suggested it, the trustee wrote in the Statement of Objections: "I comment that source code was never asked for, nor indeed welcomed, as part of an explanatory document."

The trustee also said that Microsoft's documentation was "fundamentally flawed".

Microsoft took objection to this claim. "Hundreds of Microsoft employees and contractors have worked for more than 30,000 hours to create over 12,000 pages of detailed technical documents that are available for license today," it said.