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The Microsoft Judgment and its Implications for Competition Policy Towards Dominant Firms in Europe


Christian Ahlborn


Linklaters LLP

David S. Evans


University of Chicago Law School; University College London; Global Economics Group

April 1, 2008

Antitrust Law Journal, Vol. 75, No. 3, 2009

Abstract:     
The European Court of First Instance (CFI) rejected Microsoft's grounds for annulling the Commission's Decision that the software maker had abused its dominant position in computer operating systems by refusing to supply certain protocols for interoperating with rivals' computers and by tying Windows Media Player to its Windows operating system. This article argues that the Court's judgment continues the form-based approach it has followed for four decades to abuse of dominance cases and is inconsistent with the Court's emphasis on coherent economic reasoning in merger clearance reviews, thereby reinforcing a divide between these two critical parts of European competition policy. The CFI's approach also continues its historical adherence to focusing on market structure and putting aside direct evidence of adverse effects on consumer welfare. In particular, the CFI did not embrace parts of the Commission's Decision against Microsoft that advocated an effects-based approach. At the same time the CFI's judgment expands the possibilities for finding an abuse of dominance by weakening key prongs of the Bronner/Magill/IMS exceptional circumstances test for refusal to supply and adopts a separate products test for tying that has illogical implications for many standard cases.

Number of Pages in PDF File: 31

Keywords: Microsoft, Sun Microsystems, European Commission, Antitrust, Article 82, Tying, Refusal to Supply

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Date posted: April 2, 2008 ; Last revised: May 3, 2009

Suggested Citation

Ahlborn, Christian and Evans, David S., The Microsoft Judgment and its Implications for Competition Policy Towards Dominant Firms in Europe (April 1, 2008). Antitrust Law Journal, Vol. 75, No. 3, 2009. Available at SSRN: http://ssrn.com/abstract=1115867

Contact Information

Christian Ahlborn
Linklaters LLP ( email )
One Silk Street
London EC2Y 8HQ
United Kingdom
44 20 7456 2000 (Phone)
44 20 7456 2222 (Fax)
David S. Evans (Contact Author)
University of Chicago Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
University College London ( email )
London WC1E OEG
United Kingdom
Global Economics Group ( email )
1400 S. Dearborn, Suite 400
Chicago, IL 60603
United States
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