Exploring new ways to ensure interoperability under ...

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Exploring new ways to ensure interoperability under the Digital Agenda1 Inge Graef2 & Peggy Valcke3

Abstract: Purpose This article seeks to analyze the initiative of the European Commission that studied the feasibility of measures that would lead significant market players to license their interoperability information under the Digital Agenda. Design/methodology/approach The significance of the abuse of dominance regime and the electronic communications framework in ensuring access to interoperability information in the ICT sector is studied by way of analyzing legislation and case law. Against the background of these two existing regulatory regimes, the proposals that the Commission made in its recently published Staff Working Document are evaluated. Findings The Microsoft case illustrates that the abuse of dominance regime under European competition law is not very effective to remedy interoperability issues in a structural way. An ex ante regime will enable the ICT industry to reap the full benefits of interoperability on a broader scale. Since the Commission’s initiative seems to target interoperability among software products, the electronic communications regime is not applicable. A new regulatory regime should therefore be established. As the desirability of a mandatory regime can be questioned, the adoption of soft law measures seems to be the preferred option. Originality/value By putting the initiative of the Commission to examine measures that promote access to interoperability information under the Digital Agenda into its broader regulatory context, the article contributes to the discussion on the possible ways to ensure interoperability in the ICT sector.

Keywords: Interoperability, Digital Agenda, Competition law, Electronic communications law

1. Introduction In the context of the Digital Agenda, the European Commission has investigated the possibility of introducing new measures that would warrant access to interoperability information of digital products and services and software in particular. The Commission was concerned that the benefits of interoperability are lost with regard to technologies that are not 1

This work was supported by KU Leuven within the project “Legal Norms for Online Social Networks – Case Study of Data Interoperability” (2012-2016). The final version of this paper is published in Info - The journal of policy, regulation and strategy for telecommunications, information and media 2014, vol. 16, no. 1, p. 7-16, available at http://www.emeraldinsight.com/journals.htm?articleid=17102946&show=abstract. 2 PhD fellow of the Research Foundation - Flanders (FWO) at KU Leuven - Interdisciplinary Centre for Law and ICT (ICRI) - iMinds, [email protected]. 3 Research professor at KU Leuven - Interdisciplinary Centre for Law and ICT (ICRI) - iMinds; visiting professor at the University of Tilburg; lecturer media and communications law at the University of Brussels and in the Florence School of Regulation at the European University Institute.

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based on standards. In order to make products that are complementary to existing systems, developers need access to the specifications or protocols (i.e. interoperability information) implemented in a particular system that enable interconnection and interaction with other services. However, undertakings offering the prevailing systems in the market may not be willing to supply this information. By refusing competitors access to interoperability information, these firms can foreclose effective competition in the market to the detriment of consumer welfare. For this reason, the Commission proposed to “examine the feasibility of measures that could lead significant market players to license interoperability information” (European Commission, 2010, p. 15). In a Commission Staff Working Document that has recently been released, the Commission concluded that non-legislative measures such as model licenses and consolidation of best practices are to be preferred over legislative measures for facilitating interoperability (European Commission, 2013, p. 17). While Digital Agenda Commissioner Kroes in 2010 made the bold statement that she would “seriously explore all options to ensure that significant market players cannot just choose to deny interoperability with their product” (Kroes, 2010), in the end the Commission does not propose any changes in the legislative landscape concerning access to interoperability information. In this article, the policy initiative of the European Commission will be integrated into its broader regulatory context. While new legislative measures could have had a significant impact on the information and communication technologies (ICT) sector in the European Union, interoperability is not a novel issue. In competition cases as well as in the regulation of the electronic communications sector, interoperability has played a prominent role. After a description of the initiative of the Commission, these two legal frameworks will be discussed with the objective of analyzing whether the regimes are able to adequately ensure access to interoperability information of digital products and services or whether there is a need for new measures under the Digital Agenda. Against the background of existing regulatory solutions to warrant interoperability, the proposals that the Commission put forward in its Staff Working Document will be assessed. In that perspective, an additional non-legislative measure will be proposed.

2. The initiative of the European Commission under the Digital Agenda In its Communication introducing the Digital Agenda, the European Commission made various proposals for actions in the field of ICT. Under the pillar Interoperability & Standards, the Commission committed to consider “the feasibility of measures that could lead significant market players to license interoperability information while at the same time promoting innovation and competition”. The Commission expressed the concern that: “Since not all pervasive technologies are based on standards, the benefits of interoperability risk being lost in such areas” (European Commission, 2010, p. 15). In a speech given in June 2010, Digital Agenda Commissioner Kroes clarified that “any such initiative would probably be limited to certain types of IT products. And it would likely involve some form of pricing constraints”. She explicitly referred to the Microsoft case and stated that “complex antitrust investigations followed by court proceedings are perhaps not the only way to increase interoperability”. Finally, she stated that it was “certainly possible” that the result of the initiative could be a legislative proposal (Kroes, 2010). The initiative thus aimed to achieve interoperability between ICT products without having to conduct proceedings under competition law. Thereby, the Commission sought to explore ways to enforce interoperability on an ex ante basis. In the electronic communications sector, interoperability can already be imposed as one of the ex ante regulatory obligations. For this reason, it will be analyzed whether this regime can be applied to remedy a lack of 2

interoperability among digital products and services in the ICT sector. In the next section, the application of the abuse of dominance regime to refusals to license interoperability information will be discussed to see whether ex post action under European competition law is not effective to ensure access to interoperability information, as the Commission seems to suggest by taking action under the Digital Agenda.

3. Interoperability and abuse of dominance under European competition law Under Article 102 of the Treaty on the Functioning of the European Union (TFEU), abuse of a dominant position is prohibited. Several types of behaviour have been held abusive under this provision. In the Microsoft case, the abuse of dominance regime was applied to force Microsoft to make information available to its competitors that allowed them to make their products compliant with the dominant Microsoft client PC operating system Windows. In 1998, Sun Microsystems Inc., one of Microsoft’s competitors in the work group server market, complained to the Commission that Microsoft infringed Article 102 TFEU by keeping to itself information that certain software products for network computing, the so-called work group server operating systems, need to interoperate fully with Microsoft’s client PC operating system. Microsoft’s refusal to disclose how the integration between the Windows PC operating system and its server operating system functioned, limited the ability of competitors to offer servers, other than Microsoft’s server, to run on its PC operating system. According to Sun, Microsoft was hereby leveraging its dominant position on the market for operating systems for personal computers to obtain a further monopoly in the market for work group server operating systems. In March 2004, the Commission delivered its decision in which it found that the refusal of Microsoft to supply the interoperability information amounted to an abuse of a dominant position in the market for operating systems for client PCs[1]. In that market, Microsoft held very high market shares and significant barriers to entry were present. According to the Commission, Microsoft’s market share increased from 76.4% in 1996 to over 90% since 2000. As a result of this, Microsoft held a near monopoly on the market with the Windows system being the de facto standard operating system product for client PCs[2]. In 2007, the General Court issued its judgment in which it upheld the Commission decision and applied the case law of the European Court of Justice. In earlier cases it was held that a refusal to grant a license cannot in itself constitute abuse of a dominant position, since the right of the owner of the protected property to prevent third parties from using the underlying invention forms the very subject-matter of the exclusive right. However, in exceptional circumstances the exercise of the exclusive right by the right holder may involve abusive conduct[3]. The General Court agreed with the Commission’s conclusion that these exceptional circumstances were present in the case. While Microsoft had shown that there were alternative methods by which interoperability could be achieved, the General Court followed the conclusion of the Commission that in order to be able to compete viably, competitors should be able to interoperate with the Windows domain architecture on an equal footing with the Microsoft systems. The Court therefore argued that the Commission was right to require the full provision of the interoperability information. In the Court’s opinion, it was not necessary for the Commission to wait until all competition on the market was eliminated, because this would not be in line with the objective of Article 102 TFEU. It was sufficient to demonstrate that the refusal was liable to eliminate all effective competition in the market. Microsoft invoked its intellectual property rights as an objective justification for the refusal to license its interoperability information. The Court argued that the existence of intellectual property rights themselves could not constitute an objective justification, since 3

otherwise a refusal to license could never be considered to form an abuse. The Court also rejected Microsoft’s argument that there would be a negative impact on its incentives to innovate if it were required to license the information, since it had not sufficiently established that the disclosure of the interface information would have a significant negative impact on its incentives to innovate. It merely put forward general arguments without specifying in which technologies or products its incentives to invest would be eliminated. Since all requirements were met, the Court concluded that the Commission had been correct to find that Microsoft’s refusal to license amounted to an abuse of a dominant position under Article 102 TFEU[4]. As can be concluded from the Microsoft case, the abuse of dominance regime is not very effective to remedy interoperability issues in a structural way. Due to its length and complexity, an Article 102 TFEU procedure is, at least in the short run, of little assistance to a competitor who is seeking access to interoperability information. While Sun ultimately succeeded in obtaining the necessary protocols from Microsoft, it took the European Commission six years to conclude that Microsoft’s refusal to license was abusive. The duty to license only became final nine years after Sun’s complaint when the General Court upheld the Commission decision. In addition, action on the basis of Article 102 TFEU can only be taken ex post, i.e. when the dominant undertaking has already refused its competitors access to the necessary protocols. Until the Commission adopts a decision holding that the refusal is abusive and ordering the dominant firm to publish the interoperability information, the dominant undertaking can continue to exclude effective competition to the detriment of consumers. Therefore, an ex ante regime that forces dominant undertakings to license their interoperability information is welcome to ensure that the full benefits of interoperability are reaped on a broader scale (Van Rooijen, 2011, p. 2-3).

4. Interoperability and the electronic communications framework Interoperability obligations also play a role in the electronic communications framework of the European Union. The EU legal framework consists of five Directives[5] which lay down the competences and obligations of the European Commission and the national regulatory authorities (NRAs) in monitoring this sector. While the regulation is based on European Directives, the imposition of regulatory measures takes place on the national level. To ensure that the Directives are applied as uniformly as possible in the different Member States, the European Commission adopts a Recommendation on relevant markets in which it identifies “those product and service markets within the electronic communications sector, the characteristics of which may be such as to justify the imposition of regulatory obligations”[6]. In identifying the relevant markets, the Commission uses three criteria. The first criterion is the presence of high and non-transitory barriers to entry. These may be of a structural, legal or regulatory nature. Structural barriers to entry are caused by economic characteristics of the market, such as considerable economies of scale and high initial investments. Since possibilities to overcome barriers to entry also have to be taken into account, the second criterion only admits those markets whose structure does not tend towards effective competition within the relevant time horizon. The third criterion is that application of competition law alone would not adequately address the market failures at issue. Only those markets that fulfill all three criteria, may be considered for ex ante-regulation[7]. On the basis of the Recommendation of the European Commission, the NRAs identify the markets in their own territory that are eligible for ex ante-regulation. When the relevant markets are determined, the NRA has to conduct a market analysis in which it has to consider whether the market is effectively competitive. If the NRA concludes that the relevant market is not effectively competitive, it has to identify undertakings with significant market power on 4

that market and impose appropriate specific regulatory obligations on them[8]. The definition of significant market power is equivalent to the concept of dominance under European competition law[9]. One of the obligations that the NRA may impose on undertakings with significant market power relates to access to network elements and associated facilities. According to Article 12(1) of the Access Directive, an access obligation may include granting “open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services” and providing “specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services or roaming on mobile networks”[10]. As a result, the NRAs can impose ex ante interoperability obligations on undertakings having significant market power. Irrespective of significant market power, NRAs have the responsibility to encourage and ensure adequate access, interconnection and interoperability of services to the benefit of endusers under Article 5 of the Access Directive[11]. Other provisions in the Directives also relate to interoperability, but only apply to specific facilities. Under the Universal Service Directive, Member States are urged to ensure the interoperability of consumer digital television equipment[12]. Within the scope of the regulation of conditional access to digital television and radio services broadcast under the Access Directive, interoperability can also be enforced[13]. Furthermore, the Framework Directive calls upon Member States to encourage interoperability of digital interactive television services[14]. While interoperability can be enforced under the electronic communications framework, its scope of application is limited. According to Article 1(1) of the Framework Directive, the regime only applies to electronic communications networks, electronic communications services, associated facilities and associated services[15]. These comprise all facilities involved in the process of transmitting signals (Helberger, 2005, p. 204). Any network or service by which signals can be transmitted is covered, regardless of the type of information that is transported (Garzaniti and O’Regan, 2010, p. 33). In the Communication of the Commission introducing the Digital Agenda, the Commission mentioned interoperability between devices, applications, data repositories, services and networks as the main objective to achieve (European Commission, 2010, p. 14). As far as these services and networks are used for the transmission of signals in electronic communications, they fall under the scope of the electronic communications regime. However, the public consultation that the Commission held in 2012 revealed that the most common interoperability issues exist in software with regard to document and video formats, synchronization of e-mail and calendars between mobile devices and PCs, and digital rights management systems (European Commission, 2013, p. 18). Software is used to operate computers and related devices and does not relate to transmission networks or services. Therefore, software markets do not seem to fall within the scope of application of the electronic communications framework. Furthermore, in the last Recommendation on relevant markets from 2007 that forms the basis for the markets that NRAs may consider for regulation under the significant market powerregime, only markets were identified that relate to telephone networks or infrastructure access[16]. In the Recommendation on relevant markets, no software markets are identified. NRAs may deviate from the Recommendation of the European Commission. If an NRA wants to regulate a market that was not listed in the Recommendation, the NRA itself has to apply the three-criteria test to this market. However, it will be difficult to argue that barriers to entry exist which cannot be overcome by applying competition law, because of the fastmoving and innovative character of software markets. Besides, the software industry was never characterized by national monopolies in the different Member States. Therefore, the development of these markets is different than that of the markets which are currently subject 5

to ex ante-regulation. As a result, software markets do not seem to fulfill the three-criteria test.

5. Interoperability Directive as a potential new legislative measure In June 2013, a Commission Staff Working Document was published which outlines the results of the public consultation held in 2012 and the analysis of the Commission in this field. The Commission studied the feasibility of several legislative measures that would force undertakings to license their interoperability information. Amongst other measures, the Commission considered the adoption of an “Interoperability Directive”.

5.1 Legal setting of the Interoperability Directive According to the Commission, an Interoperability Directive might address cases where market players are unwilling to license interoperability information and where this negatively impacts the functioning of the single market. The Directive would form a separate regulatory framework for interoperability issues in software similar to the electronic communications regime. In particular, the Commission draws an analogy with the Access Directive that entitles NRAs to impose obligations relating to access to and use of specific network facilities. The new legislative measure, having Article 114 TFEU as its legal basis, would in the Commission’s view entail “a framework explaining the principles to follow so that regulatory action would clearly remedy a breach of interoperability principles”. In addition, “[e]xceptions should be considered for cases where the interoperability information (like the description of a hardware interface) reveal to a large extent the technology and functionality implemented by a device or a system beyond its interfaces” (European Commission, 2013, p. 12). Following the approach of the electronic communications regime, the Interoperability Directive would apply to firms having “significant market power”.

5.2 Software markets can be European or national markets Unlike markets for electronic communication networks and services, software markets are not usually confined to the territory of a particular Member State. The Microsoft case shows that a refusal to license interoperability information can be an EU-wide competition problem. At the same time, denials to give access to these specifications and protocols can also occur on national markets. The French Apple case illustrates this. In November 2005, the French Competition Council (Conseil de la Concurrence) had to decide a case involving a refusal of Apple to license its digital rights management (DRM) FairPlay to VirginMega, one of its competitors in the market for music downloads. Since VirginMega used another DRM technology, namely Microsoft’s, for its music download service, its customers could not transfer the digital music files bought from VirginMega to their iPods. The Apple iPod was only able to play files bought through the Apple iTunes Music Store and non-protected MP3 files from various sources. The iPod did not support any of the rivalling standards used by competing download services. For this reason, VirginMega requested a license from Apple for FairPlay so that it could encode its music files in the FairPlay standard with the result that its customers would be able to play the files downloaded from VirginMega’s music service on their iPods. However, Apple refused to grant a license. VirginMega argued that this refusal constituted an abuse of a dominant position under Article 102 TFEU and French competition law. While the French Competition Council stated that it could not exclude the possibility that Apple was holding a dominant position on the markets for portable music players and downloaded music, it concluded that there were no grounds 6

for finding that Apple abused its position by refusing to license the DRM FairPlay to competitors. The Council did not consider access to FairPlay indispensable for operating a platform for downloading music for three reasons. Firstly, the Council found that the majority of the consumers listened to music via a computer or would burn songs onto a CD. Studies showed that at that time only 15% of the downloaded music was transferred and used on portable players. Secondly, the Council argued that there was a way for consumers to get around the lack of interoperability and to download music from VirginMega onto their iPods. By means of ripping, which consists in converting the format of VirginMega’s downloaded music into Apple’s, songs downloaded from platforms other than Apple’s could be made compatible with the iPod. The Council stated that the financial costs of this operation were negligible and although it was more complicated than just transferring music from a computer onto a portable player, it was a common method used on the internet. Thirdly, the French Competition Council found that the market for portable music players was sufficiently competitive and offered several alternative players which were compatible with VirginMega’s downloads. The French Competition Council also found that there were circumstances which objectively justified Apple’s refusal to license. FairPlay needed to be modified and updated regularly in order to deal with possible failures of the security system. Furthermore, certain clauses in Apple’s contracts with the recording industry implied that Apple had to monitor the implementation of the DRM by all its licensees. If it had been compelled to license its DRM technology, this would have put an unreasonable burden on Apple. In addition, Apple argued that an obligation to license would involve a modification of the structure of FairPlay which would weaken its security system. For these reasons, the French Competition Council concluded that the refusal of Apple to license its DRM did not constitute abuse of dominance[17].

5.3 The decentralized enforcement of European competition law as source of inspiration Because of the differing territorial scope of software markets, the institutional model of the electronic communications framework does not seem to be appropriate for the ex anteregulation of access to interoperability information. The electronic communications model relies on national regulators with the European Commission as a ‘watchdog’ trying to guarantee a consistent application of the Directives. While the NRAs have to inform the European Commission about the regulatory obligations that they intend to impose on their territory, the Commission has no competence itself to determine the regulation in the electronic communications sector[18]. Because interoperability issues can occur both at national and European level, a suitable institutional structure would entail a division of powers between the European Commission and new national regulators. Inspiration could be drawn from the decentralized enforcement of European competition law that was introduced by Regulation 1/2003[19]. Under this Regulation, both national courts, national competition authorities and the European Commission are competent to apply Article 101 and 102 TFEU. Detailed rules on cooperation between the authorities prevent the occurrence of conflicting decisions. Since interoperability issues in software occur not solely on national markets, an appropriate institutional model to enforce a potential Interoperability Directive could be based on the decentralized enforcement of European competition rules rather than on the electronic communications model. The main difference with the decentralized model of European competition law enforcement would however be that the Interoperability Directive entails ex ante and not ex post enforcement. Therefore, some elements from the electronic communications model could be useful for the enforcement of the Interoperability Directive. Similar to the electronic communications framework, the authorities could carry out an ex ante market analysis to 7

identify undertakings with significant market power. Within the framework of the Interoperability Directive, the Commission could opt to draw up a Recommendation on relevant software markets to make sure that all regulators focus their attention to the same markets.

5.4 Desirability of a new regulatory regime In its Staff Working Document, the Commission concluded that the adoption of an Interoperability Directive was inappropriate. The Commission took the view that such a Directive might go against the principle of proportionality, considering that new bodies corresponding to the NRAs in the electronic communications sector would have to be specifically put in place. According to the Commission, there would be serious technical difficulties to define market power. In particular, the analogy with the electronic communications regime would break down, in the Commission’s view, due to the lack of identifiable market bottleneck assets in software that are equivalent to electronic communication networks (European Commission, 2013, p. 15). Indeed, the software market is more dynamic than electronic communication markets. While a lack of interoperability may constitute a bottleneck for developers, the market can still overcome this by developing new solutions that work around the problem (Devlin et al., 2009, pp. 1179-1180). Therefore, interoperability information does not constitute a bottleneck to the same degree as, for example, the telecom network of an incumbent operator to which access is absolutely indispensable for enabling competing telecom service providers to deliver services to consumers. In addition, interoperability should not be seen as a goal in itself (Palfrey and Gasser, 2012, p. 173). Interoperability remedies should be imposed in order to ensure that consumers enjoy the benefits resulting from effective competition between undertakings such as lower prices, better quality and a wider choice of new or improved goods and services[20]. While interoperability will benefit competition and innovation in most cases, there are circumstances in which a lack of interoperability should be preferred. Mandated interoperability may reduce competition between systems and diminish innovation incentives of first movers, possibly leading to a decrease in consumer welfare in the long term (Van Rooijen, 2010, p. 48; Käseberg, 2012, p. 97). While the market may self-correct the bottleneck situation where a lack of interoperability is detrimental to consumer welfare, unjustified intervention by the Commission could cause irreparable harm to competition and innovation (Devlin et al., 2009, pp. 1179-1180). As a result, the desirability of a new mandatory regime that strictly regulates access to interoperability information can be questioned.

6. Potential non-legislative measures In its Staff Working Document, the Commission proposed several non-legislative measures that would lower the practical barriers that are associated with licensing interoperability information. According to the Commission, uniform ways of communicating the existence of interoperability information and associated licensing terms may lower barriers for smaller market players and developers. Therefore, the Commission proposes, amongst other nonlegislative measures, the adoption of model licenses and best practices on advertising the availability of interoperability information. In addition, in the Commission’s view licensing could be facilitated by letting industry actors elaborate a code of conduct on how to deal with licensing requests, and to try and render their processes and vocabularies more uniform (European Commission, 2013, p. 15). While these measures will enhance transparency in the market and minimize practical hurdles, they will not enhance access to interoperability 8

information that undertakings do not wish to share. Undertakings that are not willing to give access to their specifications and protocols are not obliged or even encouraged to do so under these non-legislative measures. Therefore, it would have been advisable for the Commission to take the opportunity to lay down some principles that the industry has to take into account about giving access to interoperability information. The Commission could adopt a soft law instrument such as a Commission Communication offering assistance to developers about their rights of access to interoperability information. Several models could be adopted containing guidelines that are suitable for a particular market situation depending on the stage of development of the market. In early phases of market development, a duty to disclose interoperability information should only be mandated in very limited circumstances, since in this period competition between systems could be particularly beneficial for innovation. In later stages of market development, the need for mandated interoperability increases as the prevailing system continues to dominate the market. Therefore, an ex ante duty of disclosure should be imposed on a more general basis in later stages of market development (Van Rooijen, 2011, p. 18). The models could take the form of best practice guidance comparable to the best practices that the Commission has proposed on communicating the availability of interoperability information. Soft law principles will not enable the Commission or national regulators to enforce the interoperability obligations in a strict manner, but they will allow the Commission to monitor the effects of adopting a form of ex ante regulation. After a certain period, the Commission could evaluate the effect of the best practice principles. If the interoperability problems in the ICT sector are not solved, the Commission could still impose mandatory rules. The adoption of a Commission Communication will thus give the Commission some time to monitor the situation without having to impose a new regulatory regime.

7. Conclusion While Article 102 TFEU can be used to force dominant undertakings to give access to their interoperability information, it can be a very long and complex procedure as demonstrated by the Microsoft case. Therefore, an ex ante regime could be more effective to remedy interoperability problems on a broader scale. Since software markets do not fall within the scope of application of the electronic communications regime, a new regulatory framework would have to be developed. The Commission has reflected on this option by considering the adoption of an Interoperability Directive. Inspiration for the institutional setting of a potential Interoperability Directive could be drawn from the decentralized enforcement of European competition law. Since software markets can be both national and European markets, the communications model that relies on national regulators does not seem to be appropriate. However, in its Staff Working Document the Commission concluded that legislative measures are inappropriate and might even breach the proportionality principle because new regulatory authorities would have to be established in the Member States. In addition, since interoperability is not a goal in itself, it should not be mandated in all circumstances. In certain situations, a lack of interoperability may encourage undertakings to introduce new products that compete with the prevailing system in the market. For this reason, it may not be desirable to impose a strict mandatory regime. Instead of a new legislative regime, soft law measures may be adopted that lower practical barriers for competitors. In this regard, the proposals of the Commission could have gone a step further. The introduction of model licenses and a consolidation of best practices on communicating the availability of interoperability information will only enhance transparency in the market. These measures will not give incentives to dominant firms to publish interoperability information on a wider scale. In addition to the proposed measures, the 9

Commission could choose to lay down guidelines or best practices that clarify in which market situations interoperability information should be shared. These best practices will provide assistance to developers about their rights of access. Furthermore, the adoption of such guidelines would enable the Commission to monitor the ICT sector while preventing the occurrence of irreparable harm on consumer welfare in the long term by enforcing a mandatory regime. Although the Commission made several non-legislative proposals, more follow-up work is needed before these new measures can be implemented. Therefore, it remains to be seen to what concrete measures the initiative of the Commission to examine new ways to enforce interoperability under the Digital Agenda will lead. It is to be hoped that interoperability remains at the centre of the European Commission’s attention.

Notes 1. Commission Decision COMP/C-3/37.792, Microsoft, [2004] O.J. L32/23. 2. Commission Decision COMP/C-3/37.792, Microsoft, [2004] O.J. L32/23, para. 432, 448 and 472. 3. Case 238/87, Volvo v. Eric Veng, [1988] ECR 6211, para. 7-9; Joined cases C-241/91 and C-242/91, Telefis Eireann and Independent Television Publications Ltd v. Commission of the European Communities (Magill), [1995] ECR I-743, para. 49-50. 4. Case T-201/04, Microsoft v. Commission, [2007] ECR II-3601, para. 1330. 5. Directive 2002/21/EC on a common regulatory framework (Framework Directive) as amended by Directive 2009/140/EC; Directive 2002/19/EC on access and interconnection (Access Directive) as amended by Directive 2009/140/EC; Directive 2002/20/EC on the authorization of electronic communications networks and services (Authorisation Directive) as amended by Directive 2009/140/EC; Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) as amended by Directive 2009/136/EC; Directive 2002/58/EC on privacy and electronic communications as amended by Directive 2009/136/EC (e-Privacy Directive). 6. Article 15(1) of Directive 2002/21/EC as amended by Directive 2009/140/EC. 7. Recital 5 of Commission Recommendation on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, C(2007) 5406 rev 1, available at http://ec.europa.eu/information_society/policy/ecomm/doc/library/proposals/rec_markets _en.pdf (accessed 28 June 2013). 8. Article 16(4) of Directive 2002/21/EC as amended by Directive 2009/140/EC. 9. Recital 25 of Directive 2002/21/EC as amended by Directive 2009/140/EC. 10. Article 12(1)(e) and (g) of Directive 2002/19/EC as amended by Directive 2009/140/EC. 11. Article 5(1)(a) and (b) of Directive 2002/19/EC as amended by Directive 2009/140/EC. See Garzaniti and O’Regan, 2010, pp. 148-150 and regarding Article 5(1)(b) Helberger, 2005, pp. 228-232. 12. Article 24 of Directive 2002/22/EC as amended by Directive 2009/136/EC. 13. Article 6, Annex 1 Part 1 (b) of Directive 2002/19/EC Directive 2002/19/EC as amended by Directive 2009/140/EC imposes an ex ante access obligation on all operators of conditional access services. In Annex I, Part 1 (c), a provision can be found that mandates interoperability between two different conditional access systems. See Helberger, 2005, pp. 213-218.

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14. Article 18 of Directive Directive 2002/21/EC as amended by Directive 2009/140/EC. See Helberger, 2005, pp. 218-221. 15. For definitions see Article 2 of Directive 2002/21/EC as amended by Directive 2009/140/EC. 16. Annex to the Commission Recommendation on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, C(2007) 5406 rev 1, available at http://ec.europa.eu/information_society/policy/ecomm/doc/library/proposals/rec_markets _en.pdf (accessed 28 June 2013). 17. Decision French Competition Authority (Conseil de la Concurrence), Décision N° 04-D54 du 9 Novembre 2004 relative à des pratiques mises en oeuvre par la société Apple Computer, Inc. dans les secteurs du téléchargement de musique sur Internet et des baladeurs numériques, available at http://www.conseil-concurrence.fr/pdf/avis/04d54.pdf (accessed 28 June 2013). 18. Article 7(3) of Directive 2002/21/EC as amended by Directive 2009/140/EC. 19. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, O.J. 2002, L 1/1. 20. Communication from the Commission — Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, O.J. 2009, C 45/7.

References European Commission (2010), Communication from the Commission – A Digital Agenda for Europe, COM(2010) 245 final/2, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0245:FIN:EN:PDF (accessed 28 June 2013). European Commission (2013), Commission Staff Working Document – Analysis of measures that could lead significant market players in the ICT sector to license interoperability information, SWD(2013) 209 final, available at http://ec.europa.eu/digital-agenda/en/news/analysis-measures-could-lead-significant-marketplayers-ict-sector-license-interoperability (accessed 28 June 2013). Garzaniti, L. and O’Regan, M. (eds.) (2010), Telecommunications, Broadcasting and the Internet. EU Competition Law & Regulation, Sweet & Maxwell, London. Helberger, N. (2005), Controlling Access to Content. Regulating Conditional Access in Digital Broadcasting, Kluwer Law International, The Hague. Kroes, N. (2010), “How to get more interoperability in Europe”, speech at the Open Forum Europe 2010 Summit: 'Openness at the heart of the EU Digital Agenda', 10 June 2010, available at http://europa.eu/rapid/press-release_SPEECH-10-300_en.htm (accessed 28 June 2013). Devlin, A., Jacobs, M. and Peixoto, B. (2009), “Success, Dominance and Interoperability”, Indiana Law Journal, Vol. 84, Issue 4, pp. 1157-1201.

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Käseberg, T. (2012), Intellectual Property, Antitrust and Cumulative Innovation in the EU and the US, Hart Publishing, Oxford. Palfrey, J. and Gasser, U. (2012), Interop. The Promise and Perils of Highly Interconnected Systems, Basic Books, New York. Van Rooijen, A. (2010), The Software Interface Between Copyright and Competition Law. A Legal Analysis of Interoperability in Computer Programs, Kluwer, Alphen aan den Rijn. Van Rooijen, A. (2011), “Devising Ex-Ante Interoperability Rules: Lessons from the Court of First Instance's Microsoft Judgment”, International Journal of Communications Law & Policy, No. 14, pp. 1-37.

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