Interoperability: 'Indispensability' and 'Special Responsibility' in High Technology Markets

Abstract

Article 82 of the European Community Treaty (EC Treaty) imposes duties on dominant undertakings in EC competition law to make available certain information which is considered necessary for interoperability in high technology markets. This liability derives from the “duty to deal” imposed on undertakings in a dominant position and the scope of the duty comprises one of the major issues currently before the Court of First Instance in Microsoft’s appeal against the European Commission’s 2004 decision. Drawing on comparative materials, this Article interrogates the view that the EC duty extends beyond that currently imposed under U.S. antitrust law with potentially adverse consequences for consumer welfare in high technology markets.

Keywords: Competition law, European Commission, Article 102 (ex Article 82), Microsoft, Refusal to Supply, Interoperability