Mandatory Supply of Interoperability Information: The Microsoft Judgment

Abstract

The judgment of the Court of First Instance in Microsoft represents a major success for the European Commission in its fight against abuses of a dominant position. The Court upholds the Commission's findings that Microsoft abused its dominant position by refusing to supply interoperability information that is indispensable for competitors to be able to viably compete in the work group server operating system market. Moreover, the Court upholds the record fine of approximately EUR 497 million. According to the Court, the judgment does not contain any legal novelty, as it simply applies earlier Magill/IMS Health case law. However, it may be argued that the judgment does contain a legal novelty as to the scope of the so-called new product condition. Specifically, it may be argued that the judgment considerably diminishes the scope for a dominant firm to rely on intellectual property rights as a defence in antitrust proceedings concerning the abuse of a dominant position.