Chillin'Competition

From a purely academic point of view, it may be regretted that the judgment was not brought on appeal before the ECJ so Europe’s highest Court could have its final say in the case. However, sooner or later, either through a direct action or through a reference for a preliminary ruling under Article 234 EC, the ECJ may find the occasion to examine and decide on the delicate balance that must be struck between IPRs and competition law.

Regarding the tying part in the judgment, it is probably the case that less people are worried about the consequences of the judgment, even though, also in this respect, it is necessary to bear in mind that the risks entailed in overstretching the concept of tying can become a serious constraint for what otherwise would be valuable development and innovation to the benefit of consumers. As Advocate General Francis Jacobs once put it, competition law is not there to protect competitors but competition and the consumers.

Mario Monti, former competition Commissionner is also reported to have said that the Microsoft case:

“was “certainly” his most difficult case; […] “Not for its technical complexity, but because of the rather drastic trade-off to be made after the long investigation. After three days of intensive negotiations with the CEO to achieve a settlement, a good phase in the mutual negotiations, we concluded that we were interested […] to achieve a precedent“. ( Source: M-Lex, 14 September 2009, “Monti warns of threat to competition policy ‘from within’”, D. LUMDSEN).

This lends credit to the unofficial, “off the record“, story that Monti and Vesterdorf have not been entirely free to call the shots, and that they might have even been placed in a minority position at some stage.

(Image possibly subject to copyrights. Source here)