The Microsoft Judgment: Article 82 Revisited?

Global Competition Policy (GCP), January 2008, Release no. 2. GCP is a bi-weekly online magazine covering competition law, economics, and policy on the web at http://www.globalcompetitionpolicy.org/.

Article Abstract

The judgment of the European Court of First Instance in Microsoft raises several issues. In this article, we will look in particular at the main findings regarding the two abuses (refusals to license and product integration).

Under the applicable case law before Microsoft (i.e., the IMS Health and Magill judgments), the refusal by a dominant undertaking to allow access to a product protected by intellectual property rights (IPR) was regarded as abusive only in exceptional circumstances, where three conditions were met:

where the IPR is "indispensable" to exercise an activity in a neighboring market;

where the refusal is likely to "eliminate all competition" on such market; and

where the undertaking intends to use its IPR to hinder the production of "new products" that it does not offer and for which there is a potential consumer demand.

It is essentially with regard to this third condition, the "new product" condition, that the Microsoft judgment introduces significant changes to the existing case law.

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