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Refusal to supply intellectual property rights
Refusing to license intellectual property rights, or providing interoperability information by a dominant firm, are regarded as improper exercise of intellectual property rights (IPR) and can fall under Article 102.

The Cases of Renault and Volvo
The issue of whether the use of an IPR could amount to abuse of a dominant position was examined for the first time by the European Court of Justice (ECJ) in the combined cases of Renault and Volvo. It was held that a refusal to grant a license should not in itself constitute an abuse of a dominant position. However, if a dominant undertaking: might result to an abuse of dominant position.
 * 1) arbitrary refuses to supply spare parts to independent repairers, or
 * 2) is fixing prices of spare parts at an unfair level, or
 * 3) adopts a decision of no longer producing spare parts for a particular model, even though many cars of that model are still in circulation.

Magil Case
In the case of Magill the ECJ made one of the most important decisions on the relationship between Intellectual property law and European Union (EU) law. Magill wanted to publish a comprehensive, weekly television guide, which would contain program listings for all television channels available in Ireland and Northern Ireland. However, the television channels of RTE, ITV and BBC, which broadcasted in Ireland and Northern Ireland, was each publishing its own television guide and were enjoying protection under copyright law. There was an obvious public demand for weekly listings magazines, but these broadcasting companies were refusing to grant a license to Magill. The ECJ stated that a conduct of a dominant undertaking will not be exempted from being reviewed under Article 102, because of national copyright legislation. Even though as a principle, a mere refusal to license is not abuse in itself, it can give rise to an abuse in exceptional circumstances. The Court held that, the refusal to grant license constituted an abuse for three reasons. By denying access to the basic information, that was indispensable to the compilation of the new product in question, which was the television guide, they were excluding all competitors from the market.
 * 1) They prevented a new product from entering the market (in this case a comprehensive, weekly television program guide, which the television companies did not offer), for which a potential consumer demand existed.
 * 2) The refusal was not justified.
 * 3) The television companies were eliminating the competition in the secondary market of weekly television guides.

Bronner v Mediaprint
The circumstances that led to the Magill judgment were stressed in Bronner v Mediaprint .The Court held that it needed to be shown that the refusal was likely to eliminate all competition in the daily newspaper market, while being unjustifiable. Also, that service had to be indispensable to carrying out Bronner’s business, and there was no actual or potential substitute.

IMS Case
In the case of IMS the court followed the decision in Bronner. The Court had to consider whether the refusal to license might have “excluded all competitors in a secondary market” and whether it might “prevented the emergence of a new product”. The court stated that a refusal to grant a license by a dominant undertaking does not in itself constitute an abuse, unless the following conditions are fulfilled: Then, the criteria restated by the court in Bronner, had to be considered. The Court stated that, a balance between the economic freedom of an IP owner and the protection of competition in general had to be achieved .The latter can only prevail when a refusal to grant a license, prevents a secondary market from developing, which affects consumers in a negative way. Consequently, the license must lead to the development of a secondary market and not only in the existence of a new product, or a replication of what the IP owner is already doing.
 * 1) The refusal is preventing a new product or service, for which there is a potential consumer demand, from entering the market.
 * 2) This refusal is not justified by any objective considerations.
 * 3) The refusal is such as to exclude any competitors from a secondary market.

Microsoft v Commission
In the case of Microsoft v Commission, the Court of First instance clarified how the exceptional circumstances, as identified in Magill and IMS, should be approached. Microsoft held over 90 per cent of the personal computer operating systems market. The personal computer operating system used by clients had to be compatible with the workgroup server operating system, in order for them to function in a network. However, Microsoft was refusing to supply its competitors with interoperability information and to authorise that information to be used in the development of work group server operating systems, that was in competition with Microsoft. As a result, other workgroup server operating systems could not remain in competition with Microsoft’s one. The Court referred to the previous cases of Magill, Bronner and IMS when approaching the issue. It held that refusal to license by a dominant undertaking does not in itself constitute as an abuse of dominant position under Article 102, unless it falls within the exceptional circumstances. The Court agreed with the Commission that, the clients’ computers operating with the Microsoft Operating system, had to be compatible with non-Microsoft group workgroup server operating systems, in order for them to stay viable on the market. This meant that the interoperability information of the Personal Computers, was necessary for the exercise of a particular activity on the secondary market of workgroup servers’ operating systems, and thus indispensable for the maintenance of effective competition. Microsoft then tried to argue that the refusal would not exclude all competition from a secondary market. However, the Court clarified that, it is not necessary to show that all competition is to be eliminated. It is only necessary to show that the refusal is liable, or likely to eliminate all effective competition on the market. This was likely to occur as organisations were not keen on moving away from Microsoft’s Operating System. Additionally, Microsoft tried to argue that the refusal did not prevent any new product from entering the market, for which, an unsatisfied consumer demand existed. The competitors only wanted to copy Microsoft’s product. The Court noted that, this should be considered in the context of Article 102(2)(b). The provision states that a prejudice of consumers may arise, when there is limitation of technical development, and not only when there is limitation of market or production. Microsoft’s refusal resulted to consumers being forced, in a way, to use Microsoft’s workgroup server. Finally, Microsoft’s justification that it had made significant investments for that technology, and granting the license would eliminate future incentives to invest in the development of intellectual property, was found unjustifiable.