Many of you will have seen a lecture I’ve given on several occasions since around 2011 when I discuss antitrust issues around interoperability.
My basic concern is that the competition rules – and I’m thinking in particular of the EU’s 2004 Microsoft Decision and the 2007 General Court upholding of that decision – see interoperability as a refusal to supply / essential facility issue.
For reasons I explore in the lecture I think that’s the wrong frame of reference. More fundamentally, I’m uncomfortable with a heuristic for when a refusal to supply leads to consumer harm that covers everything from a capacity constrained, rivalrous port, to a non-capacity constrained, non-rivalrous interface specification. The focus should not be on the heuristic, which can lead to wrong results, but on the question of consumer harm. In looking at consumer harm, what a court / authority should look at when considering consumer harm would inevitably vary significantly in those two cases.
Attached you’ll find the full text of the lecture, from a version I gave at Kings in London in 2012. It needs updating, in particular with the insights from Niamh Dunne in “Dispensing with Indispensability” and Pablo Ibanez on “Indispensability and Abuse of Dominance“. But the overall argument I think remains sound, and the comparisons with IP and telecoms regulation are still relevant.
At the time of the lecture I was still with DG Competition, hence the disclaimer at the start. The disclaimer equally applies to all past and present institutions with which I’m affiliated.
A PDF of the text of the lecture: Access and Interoperability and Antitrust – Kings 2012