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In the past the Commission and the European Court of Justice used a per se illegality approach to tying practices and it was enough to establish that a company which applied the tying strategy was dominant in the tying product market. The hostile approach taken by the Commission and the ECJ has been criticized by economists mainly because tying is a commonly applied business strategy in the world economy and companies apply this be- cause of the economic efficiencies that this business strategy leads to. The efficiency gains are indirectly past on to the consumers in the form of product quality and innovation, reduced transaction costs and lower prices. It is argued that tying in fact increase consumer welfare. Economists would therefore rather see a per se legality approach or at least a rule-of- reason approach in the future.
Due to the complexity of the Microsoft case, the Commission had to do a thorough analysis of the actual impact that the tying of WMP had on the market and the foreclosure effects that this strategy might lead to. This was therefore the first time that a rule-of-reason approach was applied on the matter of tying.
However, after the Commissionís Decision of the Microsoft case there is still uncertainty in this matter. There is a strong need for future clarification. Microsoft Corporation has lodged an appeal against the Commissionís Decision with the European Court of Justice but it will take several years before the ECJ will be able to give a fina...