Microsoft v. European Commission: Sounds Good In Theory But . . .

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Robert O’Donoghue, Sep 20, 2007

Few cases in the annals of antitrust law have provoked as much reaction and interest as the various Microsoft proceedings, which have now continued in the United States (U.S.), the European Union (EU), and elsewhere for over a decade. Reasons for the inordinate level of interest are fairly obvious. First, Microsoft itself, as a company, has long incited strong opinions and passions. Proceedings outside the United States also had the added feature that Microsoft is a company of U.S. origin, prompting trade protection accusations. Second, the affected technology markets are complex, and of obvious major importance to producers and consumers alike, given the ubiquity of personal computers (PCs) and related software. Enforcement agencies continue to struggle to develop clear standards, as well as consistent, useful enforcement action with respect to technology markets. Finally, the principal legal issues in the various Microsoft proceedings “the extent to which a single firm can be compelled to deal with third parties and the limits on its ability to bundle separate products” are arguably the most controversial issues in antitrust law at the moment.

Not surprisingly, therefore, the Court of First Instance (CFI) judgment in the appeal against the 2004 Commission decision fining Microsoft almost 500 million for unlawful refusal to deal and bundling practices was eagerly anticipated. However, the CFI ruling will probably do very little to quell the controversies alluded to above.

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O’Donoghue (Sept. 2007)