open access

Abstract

The constant tension between intellectual property rights and competition policy has recently culminated in the Microsoft case. This article examines the tests applied by the European Commission and CFI in finding Microsoft’s behaviour tantamount to the abuse of dominant position – are those tests precise and easily applicable, do they result in legal certainty, and do they only result in more competition in the short term, while having far-reaching consequences on the exercise of IPRs? In particular, this article examines the requirements of indispensability and new product in the part of the case concerning the interoperability issue, but also analyses the Commission’s assessment of the two separate products element of the test applied in the part of the judgement concerning tying. Finally, the article stresses the need to establish new or redefine the present tests in judging whether the behaviour of a dominant undertaking amounts to the abuse of dominant position.