described below finds that the dominant company ties a sufficient part of the market, the Commission is likely to reach the rebuttable conclusion that the tying practice has a market distorting foreclosure effect and thus constitutes an abuse of dominant position.
Tying & pure bundling forecloses, mixed bundling may do so
189. In the case of tying and pure bundling, the individual customers in question clearly
are foreclosed to the competitors - at least until the expiry of contracts in the case of contractual tying. In the case of mixed bundling this is less clear. Both products are available but may be priced in such a way that it would not be rational for customers to buy individual products from the bundle to match them with complementary products produced by a competitor. Competitors are foreclosed if the discount is so large that efficient competitors offering only some but not all of the components, cannot compete against the discounted bundle.
LRIC if including tied product 190. The incremental price that customers pay for each of the dominant company’s products in the bundle should therefore cover the long run incremental costs of the dominant company of including this product in the bundle.122 This would allow an equally efficient competitor with only one product to compete profitably against the bundle. Long run incremental cost is used as the cost concept, since this captures the extra costs of the dominant company’s
activities in the market(s) in which it is not dominant. If a price charged by the dominant company covers its incremental costs, such a price cannot normally be considered exclusionary. The same must hold for the incremental prices described in this section. However, it may exceptionally be concluded that although the price exceeds the long run incremental costs the mixed bundling nonetheless is considered exclusionary (see paragraphs 67 and 129).
If Domco’s incremental cost hard to calculate: 191. In certain cases it may be difficult to calculate the incremental costs of the dominant company. In such situations a case can be based on information about a rival if there are no good reasons to believe that the rival is less efficient than the dominant company. First, if cost
122 In principle, it would be more correct to use incremental revenue rather than incremental price. However, the complications of calculating incremental revenue mean that in most situations using incremental price is more practical