Abuse of dominant position under European Union law: tying practices in the Microsoft case

Nedić Pavle (Institut za međunarodnu politiku i privredu, Beograd), pavle.nedic@diplomacy.bg.ac.rs
Radovanović Marina (Institut za međunarodnu politiku i privredu, Beograd), marina.radovanovic@diplomacy.bg.ac.rs

The abuse of a dominant position, in its broadest sense, constitutes a prohibited form of anti‐competitive conduct within the internal market. The European Union (EU), as a supranational organisation, has achieved a high level of development in both the normative regulation and practical enforcement of competition law—one of the cornerstones of the EU’s internal market. Article 102 of the Treaty on the Functioning of the EU (TFEU) prohibits the abuse of a dominant position, one form of which is tying, a practice in which a seller requires the buyer to purchase a secondary product together with the primary one. The EU’s Court of Justice (CJEU) adjudicated several cases involving unlawful tying practices within the common market. Among them, the Microsoft case stands out as particularly significant and far‐reaching. At its core was the conditioning of customers to acquire the Windows operating system and the Windows Media Player software. The 2004 European Commission Decision classified Microsoft’s conduct as an abuse of a dominant position, followed by the 2007 judgment of the General Court upholding that decision, which remains a landmark ruling in EU competition law. This case was particularly noteworthy, not only because it involved a global technology giant, but also because it resulted in what was, at the time, the largest fine ever imposed by the Commission. Two decades later, the legal reasoning developed in Microsoft continues to hold remarkable relevance. In an era of technological expansion, the resurgence of old and the rise of new global economic powers, and heightened tensions within the international trade system, the issue of abuse of dominant position—in all its forms—remains a central legal question in contemporary international economic relations. For candidate countries such as the Republic of Serbia, alignment with the EU acquis in the field of competition law, combined with consistent monitoring of CJEU case law, is essential not only for fulfilling accession obligations (notably under Chapter 8 of the negotiation framework), but also for ensuring a credible, efficient, and transparent domestic market order capable of withstanding the pressures of global competition.

Keywords: Abuse of dominant position, tying, Microsoft case, EU law, European Commission, Court of Justice of the European Union (CJEU)