United States, Europe and Poland Different Stages of Antitrust Tying War in the New Economy

Mariusz SWORA

Abstract


Microsoft’s case has led to heated debates, both in Europe and the United States of America, on the abuse of the dominant position and on the prohibition of tying. This discussion, both in Europe and the United States, is not finished. In this article the author presents legal implications of tying products in Europe and Poland and confronts them with the American approach to tying. In Poland, a country with a fast developing economy, with the growing level of foreign investments, discussion on monopolist practices under the conditions of a fast technological development1 has not really commenced yet. The problems of innovation and development of New Economy undertakings has gained new impetus following Poland’s accession to the European Union. It is a matter of time when the anti-trust law begins to show interest in them. There are some indications that this has already taken place. In the first part of this article the author briefly presents the discussion related to Microsoft III case in the United States insofar as it pertains to New Economy issues. The second and third parts address legal and political aspects of the Microsoft case in the European Union. In the fourth part legal aspects related to tying practices in Poland are presented. The article aims to show that instrumental and mechanical treatment of tying practices used by firms having the market power under conditions of technological progress is not proper. The problem of antitrust analysis of such practices is universal, as universal as these practices are. However, the problem is solved differently in the United States and in Europe and the reasons for such a different approach are rooted in the legal system and policy enforcement. Microsoft antitrust is global. After US and European cases, Korean competition authority has found Microsoft guilty of tying practices2. Regarding Microsoft problems with tying it is necessary to ask the question whether tying practices are characteristic only to enterprises like Microsoft or constitute a general problem from the New Economy perspective. An important question here is (to paraphrase M. D. Bradley and D. W. Jansen)3: should we teach an old economy dog New Economy tricks?

Keywords


Microsoft; economy; tying war; antitrust; USA; Tying practices; policy;

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