Vesterdorf, Bo --- "Epilogue" [2010] ELECD 487; 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 Title: Epilogue

Author(s): Vesterdorf, Bo

Number of pages: 3

Extract:

Epilogue
Bo Vesterdorf

At a first reading, Article 82 EC would seem a rather clear and simple rule
of law. Quite simply, dominant undertakings may not abuse their posi-
tion and the Article even indicates in a non-exhaustive way some types of
conduct which may be abusive. At a closer look, things, however, become
more complicated. On which market and when is the particular undertak-
ing dominant? And, if dominant, what kind of conduct is abusive? And
is this specific kind of conduct only abusive under specific circumstances?
And even if one may have an instinctive, immediate reaction of finding of
abuse in certain situations, it is not at all always easy to explain and give
legal reasons in detail why.
When discussing such issues it must, at the same time, be kept in mind
that it appears indirectly from Article 82 EC, and very directly from the case
law of the European Court of Justice and the Court of First Instance (CFI),
that dominant undertakings are also entitled to compete, even vigorously,
as long as they compete on the merits of their products or services. They
are therefore also entitled to acquire intellectual property rights (IPRs)
and benefit from the protection accorded by such rights under the law, and
exercise and defend these rights vis-a-vis their competitors or others. They
are evidently also entitled, and should be encouraged, to innovate and in
that connection have the right to defend against free-riding.
However, they are indeed ...