Article 82(d) 182. Tying is mentioned by Article 82(d) as a possible abuse. According to this article it is abusive to make “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”. However, it may be abusive for a dominant company to tie sales of products even when this is in accordance with commercial usage in the market.114 Typically tying involves the dominant undertaking by contract depriving its customers of the choice to obtain the tying product without the tied product (contractual tying). However, the dominant company may also as a matter of fact deprive its customers of this choice, if the dominant undertaking refuses to sell the tying good individually (tying) or any of the two products individually (pure bundling). Technical tying occurs when the tied product is physically integrated in the tying product. Customers may also be deprived of the choice in less direct ways. The dominant company may, for example, refuse to acknowledge guarantees unless customers use its components, consumables or services. Mixed bundling (commercial tying) is an indirect measure to achieve the same result as through contractual tying by inducing customers to purchase the tied product through granting bonuses, rebates, discounts or any other commercial advantage. Also mixed bundling can be an abuse under Article 82(d).115 Therefore, the possible abuse is the practice by which a dominant company either imposes on customers the acquisition of one product or service conditional upon the purchase of another (tying) or forces or economically induces customers to only buy a bundle consisting of the two products (pure or mixed bundling).
Conditions of Abuse 183. For such practices to be prohibited under Article 82, the presence of the following elements is usually required: (i) the company concerned is dominant in the tying market116; (ii)
the tying and tied goods are two distinct products; (iii) the tying practice is likely to have a
114 115 116
C-333/94 P Tetra Pak II, cited in footnote 74, paragraph 37. Case 85/76 Hoffman-La Roche, cited in footnote 5, paragraph 111. The analysis differs in the special case of tying in aftermarkets, which is described in section 10.