Legal and Economic Analysis of a Transatlantic Antitrust Case
Edited by Luca Rubini
Chapter 10: Tying, Technological Integration and Article 82 EC Treaty: Where do we go after the Microsoft Case?
10. Tying, technological integration and Article 82 EC: where do we go after the Microsoft case? Arianna Andreangeli* 1. INTRODUCTION The CFI judgment in the Microsoft case1 constitutes a high profile example of the impact of the EU antitrust rules on dominant undertakings operating in innovative industries and raises important questions on the suitability of the current legal framework governing cases of tying under Article 82 of the EC Treaty to examples of technological integration in the software market.2 This chapter examines some of these issues and considers whether it would be feasible for the Commission and the EU courts to develop a different and perhaps more flexible approach to these practices. After illustrating the EC rules governing ‘classic’ tying and analysing the position adopted by the Microsoft judgment, this chapter will consider the current approach of the US courts to technological integration in new economy markets and compare it with that applied by the CFI. It will argue that although this case dealt with the conduct of a ‘super-dominant’ company and its conclusions may not therefore be easily extended to other sets of facts, it could create uncertainty as to the suitability of the existing rules for tying in ‘novel’ industries. Thereafter, this chapter will speculate * Many thanks are owed to Dr Amanda Warren-Jones for the many discussions on these issues and to Prof. Alison Jones of King’s College, London, for her feedback. An earlier version of this chapter was presented at the Conference on The Next 50 Years:...
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