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In Microsoft v. Commission, Microsoft was ordered by the European Court of First Instance (CFI) to license interface information to its competitors on reasonable terms and to supply a fully functioning version of Windows Personal Computer Operating System without Windows Media Player. Microsoft claimed that the remedies infringed the minimum standards of IP protection provided by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, the CFI refused to examine the TRIPS provisions, on the basis that international agreements do not prevail over primary Community law, and in any case, the TRIPS agreement permits members to restrain anti-competitive abuse of IP rights. This article examines the issues that arise from this position: first, is the Microsoft decision TRIPS compliant? Secondly, to what extent is the EU bound to its obligations under the TRIPS Agreement? The article highlights the lack of a clear-cut hierarchy of norms and illustrates how EU law is placed within a multi-layered governance structure involving national law and international law. The article finds that the EU does not engage in consistent interpretation or application of the TRIPS provisions.
