An Analysis of Tying and Technological Integration
New Horizons in Competition Law and Economics series
Chapter 3: Tying Arrangements under Article 82 EC
1. INTRODUCTION Two important elements create the framework of any Article 82 analysis: dominance and abuse. However Article 82 falls short of providing a definition of the two concepts. Therefore, case law has played a crucial part in shaping the role that Article 82 takes in EC competition law regulation. Without tracing the whole history of Article 82, its roots, and case law development, it suffices to say that Article 82 has been heavily influenced, if not based, on ordoliberal thinking and therefore began as a means to control market power, to create fair competition and ensure the freedom of those engaged in business.1 Out of this backdrop have evolved certain central concepts such as the special responsibility placed upon dominant companies and performance-based competition, which have led to certain conduct being treated as more or less illegal per se.2 This is regardless of the actual efficiencies and benefits the particular conduct generates for consumer welfare, because the current form-based approach merely identifies and condemns specific conduct as abusive and presumes the (potential) effects upon competitors.3 The result is an increased risk of false positive rulings, where conduct appears anti-competitive from a pure formalistic view, but in reality may not be as anti-competitive and has significant efficiency and welfare benefits,4 tying being an excellent example. Case law has Gerber, David, Law and Competition in the Twentieth Century Europe, Protecting Prometheus (Oxford University Press, Oxford, 2001), p. 241 and Rousseva Ekaterina, ‘Modernising by eradicating how the Commission’s New Approach to...
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