The application of Article 82 EC to tie-in agreements

Sammanfattning: Abusive behaviour by dominant undertakings is regulated in Article 82 EC. One of the ways to abuse a dominant position is through tying or bundling, and Article 82(d) states that: ''making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.'' Tying can take different forms, but its essence is that the seller supplies the consumer with a product or a service on the condition that he or she also obtains something else, and thereby ''ties'' two or more products together. The practice is often criticized on the grounds that it takes away the purchaser's freedom of choice, forecloses competitors, and enables companies to extend their monopoly into the market of the tied product. Tying is however not always harmful, since as a result of the practice a number of benefits can be achieved for both customers and producers. This is one of the reasons why the Commission's and the Community Courts' hostile treatment of tying has been so criticized. Tying has only been dealt with in a small number of cases in the EC, where the most important ones are Hilti, Tetra Pak II and Microsoft. Prior to Microsoft, a per se approach was consistently applied in all tying cases. The test when assessing tying cases was threefold, and a finding of market power, separate products and coercion was enough for a tying practice to be considered abusive. It appears as though the Commission and the Courts have been focusing on the form when assessing tying arrangements, rather than the actual effects of the practice. Since tying can actually have pro-competitive effects, a per se prohibition seems rather outdated and scholars have therefore been arguing that a rule of reason approach would be more appropriate. In Microsoft it seems as though the Commission has listened to the arguments put forward. A new analytical framework was applied in the Commission's decision, where the actual foreclosure effect was assessed. This suggests a move towards a rule of reason approach by the Commission. Still, the Microsoft case differs from earlier tying cases since it deals with technological tying. This makes it hard to predict whether the Commission's approach was a change in attitude towards tying, or just valid for this particular case. Nonetheless, it is obvious that the last years' criticism against the application of Article 82 EC has been heard. As a reaction, the Commission issued ''The DG Competition discussion paper on the application of Article 82 EC to exclusionary abuses'', in 2005. The purpose of the Discussion Paper was to revise the application of Article 82 EC, including the approach towards tying. When Neelie Kroes spoke about the Article 82 revision at Fordham, she said that it is important that the exercise of market power is assessed based on its effects in the market. She also said that aggressive competition is good, as long as it ultimately benefits the consumers. Despite these intentions the Discussion Paper is to a large extent a restatement of the case law of the Community courts and the Commission. It is not the radical move towards a more economics-based rule of reason approach that some might have expected. Hopefully the next step in the Commission's revision will be some kind of guidelines that will help clarify the unclear approach towards tying in the EC.