Court Of Justice Of The European Communities

Lecture by Mr Mertens de Wilmar

By Miguel Nicolas

This lecture focused mainly on some technical point of the Microsoft case and gave a little overview of European Competition Law.

Concerning the Microsoft case, the main line of defence of Microsoft was founded on the Intellectual Property law aspect, referring very often to the IMS Health and Magill cases. Mr. Mertens de Wilmar explained to us that the Microsoft case dealt with three distinct issues relating to an alleged abuse of a dominant position:

*Client PC operating system;

*Work groups server operating systems;

*Streaming media players.

Mr. de Wilmar also tried to explain to us what the alleged breach of European Competition Law by Microsoft was and why the defence line of the Microsoft could not resist, with regard the European Competition law. During the lecture, it became clear that there is no doubt for him regarding the outcome of the Microsoft case: Microsoft will have to pay the exceptional fine imposed by the Commission.

On the question whether Competition law or the Intellectual property right prevails, Mr. de Wilmar answered, "It is impossible to reply to this question at present." According to him, this is because the previous case law on the relationship between Competition law and Intellectual property law does not offer a clear solution. The previous famous cases, like IMS Health or Magill, did not deal directly with this problem.

From the lecture, we can see that the lecturer has a big knowledge on European Competition law and in EU law in general. This is the reason why, I think, it is difficult to have a lot of knowledge in all the fields of law nowadays, because when you plead a case you always have a specialist in front of you.

The Microsoft case is a perfectly good example, because the specialists of the European Commission practice EU Law every day. Nonetheless, we could see during the lecture that, even if you are a specialist of EU Law, you do not have all the answers to all the questions, because often it is simply not possible, for different kinds of reasons.

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