Fox, Eleanor M. --- "The EC Microsoft Case and Duty to Deal: The Transatlantic Divide" [2010] ELECD 480; in Rubini, Luca (ed), "Microsoft on Trial" (Edward Elgar Publishing, 2010)

Book Title: Microsoft on Trial

Editor(s): Rubini, Luca

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848442443

Section: Chapter 8

Section Title: The EC Microsoft Case and Duty to Deal: The Transatlantic Divide

Author(s): Fox, Eleanor M.

Number of pages: 8

Extract:

8. The EC Microsoft case and duty to
deal: the transatlantic divide
Eleanor M. Fox*

1. INTRODUCTION

This chapter examines Microsoft's offence in refusing to give full informa-
tion to its work group server operating systems rivals so that they could
interoperate as seamlessly with Microsoft's PC and work group server
operating systems as Microsoft could.1 It is well known that firms, even
monopolists, have no general duty to deal, and this is especially true when
a claim is made that the firm must share its intellectual property (IP). A
dominant firm has a duty to deal only in the event of exceptional circum-
stances. The question is: Did the facts of the Microsoft case involve `excep-
tional circumstances'?
The Microsoft case was preceded by two important precedents on duty
to license IP: Magill2 and IMS Health.3 The Court of First Instance
(CFI) in the Microsoft case purported to apply the criteria laid down in
Magill and IMS Health, but pushed the round peg of the Microsoft facts
into the square boxes of Magill and IMS Health. This chapter proposes
abandoning the square boxes and resorting to concept rather than rules to
determine when circumstances are so exceptionally important to consum-
ers and the market that a duty to deal should arise. Resorting to concept,
and given the general perspective of EC competition law, the European
courts would probably find a duty. But is there a transatlantic divide?



* The author thanks John Vickers for helpful comments ...