The Microsoft Judgment: Article 82 Revisited?

Posted by D. Daniel Sokol

Denis Waelbroeck of Ashurst has some interesting thoughts on the meaning of The Microsoft Judgment: Article 82 Revisited?

ABSTRACT: The judgment of the European Court of First Instance in Microsoft raises several issues. In this article, we will look in particular at the main findings regarding the two abuses (refusals to license and product integration).

Under the applicable case law before Microsoft  (i.e., the IMS Health and Magill judgments), the refusal by a dominant undertaking to allow access to a product protected by intellectual property rights (IPR) was regarded as abusive only in exceptional circumstances, where three conditions were met:

(i) where the IPR is “indispensable” to exercise an activity in a neighboring market; (ii) where the refusal is likely to “eliminate all competition” on such market; and (iii) where the undertaking intends to use its IPR to hinder the production of “new products” that it does not offer and for which there is a potential consumer demand. It is essentially with regard to this third condition, the “new product” condition, that the Microsoft judgment introduces significant changes to the existing case law.