Legal and Economic Analysis of a Transatlantic Antitrust Case
Edited by Luca Rubini
Chapter 8: The EC Microsoft Case and Duty to Deal: The Transatlantic Divide
Eleanor M. Fox* INTRODUCTION 1. This chapter examines Microsoft’s offence in refusing to give full information to its work group server operating systems rivals so that they could interoperate as seamlessly with Microsoft’s PC and work group server operating systems as Microsoft could.1 It is well known that firms, even monopolists, have no general duty to deal, and this is especially true when a claim is made that the firm must share its intellectual property (IP). A dominant firm has a duty to deal only in the event of exceptional circumstances. The question is: Did the facts of the Microsoft case involve ‘exceptional circumstances’? The Microsoft case was preceded by two important precedents on duty to license IP: Magill2 and IMS Health.3 The Court of First Instance (CFI) in the Microsoft case purported to apply the criteria laid down in Magill and IMS Health, but pushed the round peg of the Microsoft facts into the square boxes of Magill and IMS Health. This chapter proposes abandoning the square boxes and resorting to concept rather than rules to determine when circumstances are so exceptionally important to consumers and the market that a duty to deal should arise. Resorting to concept, and given the general perspective of EC competition law, the European courts would probably find a duty. But is there a transatlantic divide? * The author thanks John Vickers for helpful comments on an earlier draft of this chapter. A form of the essay originally appeared in (2008) Competition Policy International (Spring)...
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