A Study on the Article 82 of the EC Treaty：Focus on the Operating System''s tying issue in the Microsoft case

• Main Authors: I-Ju Chen, 陳逸如
• Other Authors: Yao-Ming Hsu
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/35042907364527407110

碩士 === 國立中興大學 === 科技法律研究所 === 97 === Undertakings can freely use their right to do business according to their freedom, which is granted by the Constitution. Undertakings have the right to tie two separated products together, and such a behavior has been a common method of marketing. However, either legal scholarships or economists agree that tying would result in antitrust effects, especially when undertakings have dominant positions. Undertakings having dominant positions will extend their market power through tying, and then they will foreclose the competition of tied products’ markets. EU Competition Law considers Undertakings’ illegal tying abusing their dominant positions. Article 82(d) of the EC Treaty is the regulation to forbid the behavior. Conditions under Article 82 prohibiting undertakings from abusing their dominant positions, such as forming the dominant position and the definition of abusing the dominant positions, have been constructed more specific and appropriate with both the Commission’s Decisions and judgments of the Court. This result gives EU an impetus to an undistorted single common market. The central goal of this thesis is to do a research of Article 82’s practices by way of judgments. First of all, this thesis compiles EU Competition Law related theories. In order to understand complete Article 82’s practices, this thesis analyzes the Operating System’s issue in the Microsoft case, including the Commission’s opinions about the refusal to disclose and the elements of illegal tying. Second, this thesis analyzes the judgment of the Court of the First Instance for a complete understanding of explanations and practices of Article 82 of the EU Competition Law. Finally, based on the above researching results, the last chapter illustrates articles and practices regulating illegal tying in Taiwan’s Fair Trade Law. Because there are some difficulties dealing with illegal tying conditions in Taiwan, this thesis hopes to offer helpful suggestions to the Fair Trade Commission in Taiwan from the perspectives of comparative research. Furthermore, this thesis wish the suggestions provided can lead the Fair Trade Law toward a progressive future.