Comment on the 'Microsoft' ruling of the CFI (September 17, 2007)

This paper discusses the stakes, lessons and possible consequences of the Microsoft ruling of the EU Court of First Instance (CFI) of September 17, 2007.

It focuses on three main issues:

  1. The Commission's victory on the main issues of principle as well as on the scope of remedies imposed to Microsoft was probably a true relief for the Commission, owing to the high stakes and the risks shadowing on its credibility. Nevertheless, the annulment of the part of the decision dealing with the independent trustee may undermine the Commission's enforcement tools and reduce the number of behavioral injunctions in future dominance cases. 
  2. On the articulation of IP rights and antitrust (interoperability issue), the Court recalled the "IMS" criteria for assessing whether a refusal to grant a license may be found abusive in exceptional circumstances, but it arguably assessed these criteria in a rather flexible way. This approach may well be explained by some characteristics peculiar to this case (Microsoft's alleged "super-dominance" and the existence of network externalities). It remains to be seen whether the case can be replicated in other circumstances and whether floodgates will open widely under waves of access requests to IP rights protected resources. 
  3. On the bundling of Windows and Media Player, the Court also arguably interpreted flexibly the conditions for there to be a foreclosure effect, but articulated a coherent theory of harm, i.e. the leveraging of the position held on the tying product market (Windows) to the tied product market (Media Player) in the specific circumstances of this exceptional case.
    Reference : JCP E 2007, 2304, with thanks to LexisNexis France


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