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

31 Pages Posted: 2 Apr 2008 Last revised: 11 Apr 2015

Christian Ahlborn

Linklaters LLP

David S. Evans

Global Economics Group; University College London

Date Written: April 1, 2008

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.

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

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: https://ssrn.com/abstract=1115867

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)

Global Economics Group ( email )

111 Devonshire St.
Suite 900
Boston, MA 02108
United States

University College London ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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