| By: |
Nicholas Economides (Stern School of Business, NYU);
Ioannis Lianos (Faculty of Laws, University College London) |
| Abstract: |
The Microsoft cases in the United States and in Europe have been influential
in determining the contours of the substantive liability standards for
dominant firms in US antitrust law and in EC Competition law. The competition
law remedies that were adopted, following the finding of liability, seem,
however, to constitute the main measure for the “success” of the case(s). An
important disagreement exists between those arguing that the remedies put in
place failed to address the roots of the competition law violation identified
in the liability decision and others who advance the view that the remedies
were far-reaching and that their alleged failure demonstrates the weakness of
the liability claim. This study evaluates these claims by examining the
variety of remedies that were finally imposed in the European Microsoft cases,
from a comparative perspective. The study begins with a discussion of the
roots of the Microsoft issues in Europe and the consequent choice of a
remedial approach by the Commission and the Court. It then explores the
effectiveness of the remedies in achieving the aims that were set. The
non-consideration of the structural remedy in the European case and the pros
and cons of developing such a remedy in the future are briefly discussed
before more emphasis is put on alternative remedies (competition and
non-competition law ones) that have been suggested in the literature. The
study concludes by discussing the fit between the remedy and the theory of
consumer harm that led to the finding of liability and questions a total
dissociation between the two. We believe that it is important to think
seriously about potential remedies before litigation begins. However, we do
not require an ex ante identification of an appropriate remedy by the
plaintiffs, since this could lead to underenforcement or overenforcement. |
| Keywords: |
antitrust, remedies, Microsoft, complementarity, innovation, efficiency, monopoly, oligopoly, media player, interoperability, Internet browser |
| JEL: |
K21 L41 L42 L12 L86 L63 |
| Date: |
2009–08 |
| URL: |
http://d.repec.org/n?u=RePEc:net:wpaper:0905&r=law |