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EUROPEAN COMMISSION DG Competition - page 83 / 113

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market distorting foreclosure effect; (iv) the tying practice is not justified objectively or by

efficiencies.

8.2.1 DOMINANCE IN THE TYING MARKET

Dominant in tying market 184. For tying to be abusive the company concerned needs to be dominant in the tying market.117 It is not necessary that the company also is dominant in the tied market. However, dominance

also in the tied market renders the finding of an abuse more likely. In order to assess this properly it is normally necessary to define the relevant market(s) on which both the tying and the tied product are sold.

8.2.2 DISTINCT PRODUCTS

Depends on customers’ demand 185. What can be considered as distinct products is determined by the demand of the customers. Two products are distinct if, in the absence of tying or bundling, from the customers’ perspective,

the products are or would be purchased separately. It is, however, not necessary that the two products belong to two separate product markets. In a market with differentiated products, two products may be sufficiently differentiated that a company can be said to tie or bundle two distinct products.118.

Direct or indirect evidence that markets are distinct 186. Evidence that two products are distinct can include direct evidence that, when given a choice, customers purchase the products separately. Or indirect evidence that companies with little market power, particularly in competitive markets, tend not to tie the two products, presumably because this best serves the demand of the customers. Another example of indirect evidence is the situation where there are already on the market independent companies who are

117 118 In case of bundling dominance in one of the markets concerned is necessary. In such a case it is necessary that the company concerned can be considered dominant by virtue of selling one of the two products (the tying product) on its own, since the sales of the tied product allegedly result from the tying or bundling practice. Practices involving two or more units of the same product, such as imposing minimum purchasing requirements and giving loyalty rebates, may also be abusive; such practices are analysed in section 7 on single branding and rebates.

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