The CFI Microsoft Judgment and TRIPS Competition Flexibilities

The CFI Microsoft judgment is the first decision handed down by any court situated in a WTO Member state that regards the competition rules in the TRIPS Agreement in order to partly justify the application of domestic competition laws to the exercise of intellectual property rights (IPRs). The TRIPS Agreement allows WTO Members to enact and apply national competition laws to IPR-related anti-competitive practices. The position of the CFI finds support in this fact. Still, it is regrettable that the CFI did not invoke the TRIPS competition rules in justifying the Commission’s decision to force Microsoft to supply interoperability information. This article considers the consequences of the European position and the effects of TRIPS flexibilities for developing countries.