Monthly Archives: July 2012

“Imprecise legal concepts” are no excuse

The second chapter of the Microsoft saga unfolded on 27 June 2012, when the General Court largely upheld the €899 million periodic penalty payment imposed on Microsoft for failing to share adequate interoperability information with its competitors. However, it also offered some comfort to proprietors of intellectual property rights, with the Court seemingly retreating from some of the more expansive views expressed in Microsoft I.

See Case T-167/08 Microsoft Corp. v European Commission.

The case follows the Commission’s 2004 decision that Microsoft had abused its dominant position by withholding interoperability information, upheld by the General Court in Microsoft I. As part of the remedy, Microsoft was required to provide access to the information on reasonable and non-discriminatory (“FRAND”) terms, to allow interoperability between the dominant Windows architecture and rival servers. It failed to do so, and in February 2008 the Commission imposed the penalty which is the focus of Microsoft II.

The judgment is important for two reasons. Continue reading

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Filed under Abuse, Penalties

Competition law achieves fair play

The London Welsh decision provides a rare but telling example of competition law marching its way onto the field of professional sport.

London Welsh won rugby union’s Championship in the 2011-12 season.  This would, in ordinary circumstances, have entitled them to be promoted to the Premiership, which is club rugby’s highest division.  The RFU, however, operates “minimum standards criteria” for the Premiership, which require any club eligible for promotion from the Championship to have “primacy of tenure” over their home ground.  London Welsh did not have primacy of tenure and so their bid for promotion was refused by the RFU.

All, so far, the stuff of an unexceptionable sporting decision.  There was, however, a small complication: there were three clubs already in the Premiership which also did not have primacy of tenure (London Wasps, Saracens and London Irish).  A special three-club exemption operated for those clubs.  The exemption was not, however, open to London Welsh, or to any other club which might qualify for promotion from the Championship. Continue reading

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Filed under Abuse, Agreements