The Free Software Foundation Europe (FSFE) has requested it be allowed to argue against Microsoft in the software giant's EU anti-trust appeal.

The foundation submitted a formal request to the European Court of Justice on Wednesday to intervene in Microsoft’s second appeal against the Commission’s ruling, said Carlo Piana, a lawyer and member of the FSFE.

The second appeal, lodged in August, is against the Commission’s decision to order Microsoft to licence certain communications protocols for its workgroup server software to other companies. Microsoft has argued that this would mean giving up trade secrets because, once distributed, its code would be freely accessible by third parties without a licence.

The FSFE and Samba counter that without the right to develop products that can interoperate with Microsoft’s server software, Samba's software would not be able to compete with Microsoft’s products, something the Commission hopes to ensure.

If the request to intervene is accepted, the two parties would be able to make written submissions to the court, view submissions from Microsoft and the Commission (except those deemed confidential by the court) and take part in oral court hearings.

The two parties have already been made interveners on Microsoft’s first appeal against the Commission’s anti-trust decision, made in May 2004. The decision required the company to offer a version of Windows in Europe without its Media Player software, ensure its workgroup server software works properly with other vendors' products, and pay a fine of €497 million.

The court has not decided yet whether to admit any further new parties as interveners in the case. In September, three US think-tanks, one of which has a Microsoft employee on its board, asked for leave to intervene in the appeal.

The appeals process is expected to be completed sometime in the first half of 2006.