Defining the Limits of the EU Essential Facilities Doctrine on Intellectual Property Rights:The Primacy of Securing Optimal Innovation

I. Introduction The recent European Commission decision in the Microsoft case, imposing remedies and a fine of EUR 497.2 million on the computer giant, has done much to refocus attention on the essential facilities doctrine. 1 The decision orders Microsoft Corporation to disclose interface information, enabling competitors to develop software that will be able to integrate with Windows. For over fifteen years, the European Court of Justice ("ECJ") has accepted that in certain exceptional circumstances, a refusal to supply a potential competitor with an essential facility can amount to a breach of Article 82 of the EC Treaty. 2 However, if the ECJ accepts the finding of the Commission, the Microsoft case will be the first to order a compulsory license over a patent developed through the resources of a private entity, and the decision will fuel the debate as to what extent it is desirable that competition law destabilizes the exclusive rights of intellectual property. The Microsoft Commission decision closely preceded the judgment by the European Court of Justice in the IMS case. 3 IMS provided a suitable opportunity for the Court to establish a clear principle on essential facilities in the context of intellectual property rights. It is probable that the ECJ has used this opportunity to lay the foundations for the impending Microsoft case, since the decision emphasizes the protection of right holders. However, the IMS judgment is in many ways disappointing and leaves numerous questions unanswered. This legal uncertainty is particularly problematic ...