Tying after Microsoft: One Step Forward and Two Steps Back?

Kelyn Bacon, Apr 24, 2008

In the tying part of the Microsoft case, as in the interoperability part of the case, the CFI upheld the Commission´s Decision. But it did so on grounds that were confused and inconsistent. For all of the central elements of the case, the CFI appears to have been unable or unwilling to set out a clear statement of principle and apply it properly to the facts. The judgment also sets the CFI in direct conflict with the more economic approach being developed by the Commission in its assessment of Article 82 cases. The only clear signal provided by the CFI in this case is that it will not engage in a reform of Article 82 policy. Fortunately, this does not prevent the Commission from doing so; indeed, the legal uncertainty resulting from this judgment makes clear guidance from the Commission all the more imperative.

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