What’s the abuse? A quest for the appropriate legal test in product design cases under Article 102 TFEU
| Date | 01 June 2019 |
| DOI | 10.1177/1023263X19835400 |
| Published date | 01 June 2019 |
| Subject Matter | Articles |
Article
What’s the abuse? A quest
for the appropriate legal test
in product design cases under
Article 102 TFEU
Florence Eicher*
Abstract
In recent years, vastlychanging technology markets have posedchallenges to the application of well-
established rules and principles in European Union competition law. In particular, the integration of
technical functionalities appears to have opened new possibilities for dominant firms to leverage
market power. Aware of these developments but often oblivious to the apparent overlap, the
European Union Commission and the Court of Justice of the European Union engaged in clear-cut
analyses under one or the other well-established theory of harm. In particular, the dividing line
between the two standalone concepts on refusals to deal and tying practices appears to have been
either repositioned or misappliedin the Microsoft Saga, which marks the peakof this development. In
classifying the respective conduct as abusive tying practices in the Microsoft Saga, it is questionable
whether the Commission was granteda shortcut by the Court itself,passing (unsuccessful) refusalto
deal cases disguised as (successful) tying cases. Considering the significantly lower standard of proof
applicable to tying practices as opposed to refusals to deal, stakeholders can be expected to exploit
the vague boundaries. With this concernin mind, this essay aims to identify the boundaries between
refusal to supply and tying cases, where product integration risks resulting in anti-competitive
foreclosure on technology markets. On a more fundamental level, this essay will question
whether the peculiar features of technology markets justify a different treatment.
Keywords
Competition law, Article 102 TFEU, innovation, digital economy, Microsoft Saga, abuse of
dominance
* Katholieke Universiteit Leuven, Belgium
Corresponding author:
Florence Eicher, Katholieke Universiteit Leuven, Tiensestraat 41, 3000 Leuven, Belgium.
E-mail: florence.eicher@student.kuleuven.be/florence_eicher@hotmail.com
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(3) 421–440
ªThe Author(s) 2019
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sagepub.com/journals-permissions
DOI: 10.1177/1023263X19835400
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MJ
1. Introduction
Ascertaining the appropriate legal test for exclusionary abuse of dominance by product
design is one of the key challenges in present-day European Union (EU) competition law.
In recent years, vastly changing technology markets have posed challenges to the applica-
tion of well-established rules and principles in EU competition law. In particular, the
integration of technical functionalities appears to have opened new possibilities for domi-
nant firms to leverage market power. Aware of these developments but often oblivious to
the apparent overlap, the EU Commission and the Court of Justice of the European Union
(CJEU) engaged in clear-cut analyses under one or the other well-established theory of
harm. In particular, the dividing line between the two standalone concepts on refusals to
deal and tying practices appears to have been either repositioned or misapplied in the
Microsoft Saga, which marks the peak of this development. In classifying the respective
conduct as abusive tying practices in the Microsoft Saga, it is questionable whether the
Commission was granted a shortcut by the Court itself, passing (unsuccessful) refusal to
deal cases disguised as (successful) tying cases.
Considering the significantly lower standard of proof applicable to tying practices as opposed to
refusals to deal, stakeholders can be expected to exploit the vague boundaries. With this concern in
mind, this essay aims to identify the boundaries between refusal to supply and tying cases, where
product integration risks to result in anti-competitive foreclosure on technology markets. On a
more fundamental level, this essay will que stion whether the peculiar features of technolo gy
markets justify a different treatment and whether these features require reassessment of the
boundaries between different categories of well-established foreclosure abuses. Furthermore, it
will also engage with the distinct but related question of whether market peculiarities may qualify
existing standards, notably the indispensability standard of refusals to deal. To this end, both
concepts will be introduced briefly (Section 1.A.-B.) followed by an analysis of the Microsoft
Saga (Section 2.A.) and its implications (Section 2.B.-C.). These findings will then be located in
the broader framework of EU competition law (Section 1, C). Next, the peculiarities of technology
markets will be assessed (Section 3.A.) to conclude that the arising problems are not new. Instead,
the features for classification manifest themselves differently under the relevant standard (Section
3.B.). A conclusion will be drawn on the factors that indicate the boundaries between both
concepts, thereby focusing on two indicators. First, the remedy. Second, the different manifestation
of coercion and essential access respectively. In addition, it will be suggested that market specifics
may qualify the standard of indispensability, if justified by virtue of special features such as present
in Microsoft.
A. Essential facilities doctrine
1. Development
The essential facilities doctrine (EFD) has been developed in relation to potentially abusive
unilateral refusals to deal and related practices, such as terminating exist ing commitments to
supply.
1
This practice is subject to a standard, rather than a prima facie or qualified prohibition
1. On the recognition of EFD: V. Hatzopoulos, ‘The EU essential facilities doctrine’, in G. Amoto and C.-D. Ehlermann
(eds.), EC Competition Law: A Critical assessment (Hart Publishing 2007).
422 Maastricht Journal of European and Comparative Law 26(3)
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