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Refusing to be dominant - the Microsoft case and its implications

Doweyko Jurkowski, Tomasz LU (2011) HARM10 20111
Department of Business Law
Department of Business Administration
Abstract
Refusal to license is one of the main areas of tension between IPRs and Article 102 TFEU, dealing with the problematic but important question of whether it is an abuse for a dominant undertaking to refuse to allow others to use its protected rights. The European Courts have, in a number of cases, decided that the refusal to supply/license may amount to an abuse of a dominant position. The last case in line dealing with this was the Microsoft case. In its judgment from 2007, the GC ruled that Microsoft had abused its dominant position by refusing to supply certain information, protected by IPRs, to a number of requesting companies.

The main purpose of this thesis is to analyse in what way the Microsoft judgment follows established EU... (More)
Refusal to license is one of the main areas of tension between IPRs and Article 102 TFEU, dealing with the problematic but important question of whether it is an abuse for a dominant undertaking to refuse to allow others to use its protected rights. The European Courts have, in a number of cases, decided that the refusal to supply/license may amount to an abuse of a dominant position. The last case in line dealing with this was the Microsoft case. In its judgment from 2007, the GC ruled that Microsoft had abused its dominant position by refusing to supply certain information, protected by IPRs, to a number of requesting companies.

The main purpose of this thesis is to analyse in what way the Microsoft judgment follows established EU jurisprudence on refusal to supply/license as well as to analyse what implications for the future can be deduced from its outcome.

The Microsoft case is the focus of this thesis. The main arguments of the Commission and Microsoft as well as the assessment of the GC are covered and analysed. A large part of the thesis deals with the opinion and view of scholars and debaters on the Microsoft case, presenting and comparing the most relevant parts of their argumentation. Another part deals with the Commission and its Guidance concerning abusive exclusionary conducts by dominant companies, issued in 2009. The main points of the Discussion Paper leading up to the Guidance as well as many contributions of several interested parties received by the Commission are presented and discussed.

This thesis shows that the GC judgment in the Microsoft case has confirmed the case law on refusal to supply/license on certain aspects, it has modified some previously established aspects and on some, it can even be said to have completely departed from case law. This includes the modifying of the wording of recognized criteria as well as interpreting them in such a way as to give them a whole new meaning. This, it is argued, has increased legal uncertainty and made it difficult to envisage possible objective justifications for refusal to license situations. As for the general future implications of the case, it is difficult to give any concrete answers. The legal value of the Commission Guidance is low compared to Court judgments. Therefore, until the GC or the CJEU will get a chance to change direction again, the Microsoft case, even while acknowledging its special character, will be the latest shaping case as regards refusals to supply/license, and companies will need to adhere to its standards as defined by the GC. On the other hand, from a self-assessment perspective, the Commission 2009 Guidance is the only tool, apart from case law, which companies can use. Despite all this, the situation is not optimal from a legal certainty perspective, and many people will await with eagerness for the next case dealing with refusal to supply/license to appear in front of the EU Courts. (Less)
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author
Doweyko Jurkowski, Tomasz LU
supervisor
organization
course
HARM10 20111
year
type
H1 - Master's Degree (One Year)
subject
keywords
Competition law, abuse of dominant position, refusal to supply, refusal to license, Microsoft, intellectual property rights, interoperability information
language
English
id
2019232
date added to LUP
2011-07-08 16:20:16
date last changed
2011-07-08 16:20:16
@misc{2019232,
  abstract     = {Refusal to license is one of the main areas of tension between IPRs and Article 102 TFEU, dealing with the problematic but important question of whether it is an abuse for a dominant undertaking to refuse to allow others to use its protected rights. The European Courts have, in a number of cases, decided that the refusal to supply/license may amount to an abuse of a dominant position. The last case in line dealing with this was the Microsoft case. In its judgment from 2007, the GC ruled that Microsoft had abused its dominant position by refusing to supply certain information, protected by IPRs, to a number of requesting companies.

The main purpose of this thesis is to analyse in what way the Microsoft judgment follows established EU jurisprudence on refusal to supply/license as well as to analyse what implications for the future can be deduced from its outcome.

The Microsoft case is the focus of this thesis. The main arguments of the Commission and Microsoft as well as the assessment of the GC are covered and analysed. A large part of the thesis deals with the opinion and view of scholars and debaters on the Microsoft case, presenting and comparing the most relevant parts of their argumentation. Another part deals with the Commission and its Guidance concerning abusive exclusionary conducts by dominant companies, issued in 2009. The main points of the Discussion Paper leading up to the Guidance as well as many contributions of several interested parties received by the Commission are presented and discussed.

This thesis shows that the GC judgment in the Microsoft case has confirmed the case law on refusal to supply/license on certain aspects, it has modified some previously established aspects and on some, it can even be said to have completely departed from case law. This includes the modifying of the wording of recognized criteria as well as interpreting them in such a way as to give them a whole new meaning. This, it is argued, has increased legal uncertainty and made it difficult to envisage possible objective justifications for refusal to license situations. As for the general future implications of the case, it is difficult to give any concrete answers. The legal value of the Commission Guidance is low compared to Court judgments. Therefore, until the GC or the CJEU will get a chance to change direction again, the Microsoft case, even while acknowledging its special character, will be the latest shaping case as regards refusals to supply/license, and companies will need to adhere to its standards as defined by the GC. On the other hand, from a self-assessment perspective, the Commission 2009 Guidance is the only tool, apart from case law, which companies can use. Despite all this, the situation is not optimal from a legal certainty perspective, and many people will await with eagerness for the next case dealing with refusal to supply/license to appear in front of the EU Courts.},
  author       = {Doweyko Jurkowski, Tomasz},
  keyword      = {Competition law,abuse of dominant position,refusal to supply,refusal to license,Microsoft,intellectual property rights,interoperability information},
  language     = {eng},
  note         = {Student Paper},
  title        = {Refusing to be dominant - the Microsoft case and its implications},
  year         = {2011},
}