specialised in the manufacture and sale of the tied product without the tying product. Such indirect evidence may come from other geographical markets with more competitive conditions. Commercial usage may also indicate that two products are not distinct, and that the tying may
be done for non-exclusionary purposes.119 Often combinations have become accepted practice because the nature of the product makes it technically difficult supplying one product without also supplying another product.120 Such combinations are more likely to be found not to be tying practices than is contractual tying or bundling.
187. A particular problem arises in determining whether a new product development integrating two products that previously were distinct would mean that the combination in the future should be considered to be one product. Deciding this entails evaluating whether consumer demand has shifted as a consequence of the product integration so that there is no more independent demand for the tied product. Such a scenario could be envisaged in cases of technological integration rather than in cases of contractual tying or bundling.
8.2.3 MARKET DISTORTING FORECLOSURE EFFECT
Possible foreclosure – 2 aspects 188. The main direct anticompetitive effect of tying and bundling is possible foreclosure on the market of the tied product.121 In principle, the assessment of the foreclosure effect on the tied market can be considered to consist of two parts. First, to establish which customers are “tied” in the sense that competitors to the dominant company cannot compete for their business. Second, to establish whether these customers “add up” to a sufficient part of the market being
tied. However, an overall assessment of the likely foreclosure effect of the tying or bundling practice will be made, which will combine an analysis of the practice, its application in the market, and the strength of the dominant position. The elements described below therefore cannot be applied in a mechanical way. Where the Commission on the basis of the elements
119 However, as mentioned in paragraph 182, commercial usage does not automatically bring a certain practice outside the scope of Article 82. Similar evidence may come from the behaviour of a dominant company before it achieved dominance. For expositional ease the section on the foreclosure effect uses the terms “tying market” and “tied market”. In the cases of pure and mixed bundling, these terms may not be immediately applicable and the analysis should be appropriately adapted. 120 121