Tying Law in Microsoft I and II: The Secret Art of Magic?
Brussels School of Competition Working Paper Series No. 1/2010
10 Pages Posted: 15 Aug 2011
Date Written: November 16, 2010
This paper seeks to uncover an inconvenient truth. The Microsoft decisions are not tying cases. Rather, the two decisions taken by the EU Commission against Microsoft – i.e. the Windows Media Player (“WMP”) case of 2004 and the Internet Explorer (“IE”) case of 2009 – mark departures from conventional tying analysis (I). First, they deviate from standard tying law in that in the Microsoft cases, a key component of abusive tying, namely coercion, is missing (II). Second, the Microsoft decisions share many analogies with “essential facility” cases. One may thus question to what extent the Commission has not pursued disguised refusal to supply cases (III).
Keywords: WMP, IE, Windows Media Player, Internet Explorer, Microsoft, Tying, tying, competition law, competition, essential facility, refusal to supply, refusal, supply
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