On September 17, 2007, the European Court of Justice issued a ruling concerning the litigation between Microsoft and The European Commission for anticompetitive behavior. It all started on December 10, 1998, when Sun Microsystems lodged a complaint with The European Commission arguing that Microsoft's refusal of supplying information concerning operating systems for work group servers, in which Sun Microsystems developed its main activity, is a breach of European competition rules. Information needed concerns of interoperability of work group systems with Windows operating system. In February 2000, the European Commission started an investigation on Microsoft which was extended to the coupled sale of Microsoft's operating system and Windows media player (software used for playing audio, video and viewing images on personal computers running the Microsoft Windows system). On the March 24, 2004, The European Commission adopted a decision in which Microsoft was considered to violate the article 82 of EC Treaty. Microsoft was sentenced to disclose information permitting the interoperability for work group server operating systems and to find a mechanism to be in compliance with European law concerning the sale of Windows Media Player, which was considered as an illegal tying. In response, on the June 7, 2004, Microsoft brought the case in front of the European Court of Justice. The main questions of this case are to know in which conditions the refusal of Microsoft to disclose information permitting interoperability with competitors systems, are an anticompetitive behavior and secondly if the automatic coupled sale of windows media player with Windows operating system is a breach of European competition law.
[...] The Court confirms that Microsoft is in a dominant position concerning the relevant market at issue. "In the first place, the refusal relates to a product or service indispensable to the exercise of a particular activity on a neighbouring market; in the second place, the refusal is of such a kind as to exclude any effective competition on that neighbouring market; in the third place, the refusal prevents the appearance of a new product for which there is potential consumer demand[7]". [...]
[...] The European Commission said that the disclosure of Microsoft's information won't permit to its competitors to copy its products. But the position of Microsoft is still understandable because the company invested a so much huge amount of money to develop its technology that it's normal the company doesn't want to share in a large scale all the secrets that make the company so efficient. To balance this criticism, we can highlight that competition law reaches to protect collective interest (all competitors and consumers) and intellectual property rights reach to protect the individual interest of the inventor. [...]
[...] Conclusion The decision that we studied in this essay is not unique concerning the struggle against Microsoft´s abuse of its huge dominant position. The European Commission examined also the automatic insertion in Windows system of the software Internet Explorer. "Microsoft's tying of Internet Explorer to the Windows operating system harms competition between web browsers, undermines product innovation and ultimately reduces consumer choice[13]." The Commission started also to investigate Microsoft Office OpenDocument Format support. We can look at the actual situation as constituting a fierceness against Microsoft But we can also notice that since the European action took place against Microsoft practices, its competitors has developed their skills and products. [...]
[...] Moreover, Microsoft failed to give an objective justification to exclude the application of article 82 sanctions. The Court applies the essential facilities doctrine as developed in its precedent cases. Microsoft appeal is totally rejected concerning this point. Does the tying practice of Microsoft concerning WMP constitute a violation of the article 82 of EC Treaty? The Court has again considered that the European Commission was right to sentence the tying practice of Microsoft. This practice prevents the expansion of other software which have no access to Windows system. [...]
[...] It prevents also innovation. Why spend money for developing a new media player more performance if we know that it won't be possible to sale it in fair conditions? II. What future for competition law design? A decision with a disproportionate severity? The CFI´s decision generated a lot of critics as the balance between intellectual property rights and competition rules is dangerous. Did the Court make a right balance Did the Court go too far in the application of abuse of dominance A. [...]
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