The following Competition practice note Produced in partnership with Suzanne Rab provides comprehensive and up to date legal information covering:
Tying and bundling have largely been addressed under EU competition law in the context of abuse of dominance. Tying is specifically mentioned in Article 102(d) TFEU as 'making the conclusion of contracts subject to the 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'.
A number of EU competition investigations have raised concerns around tying and bundling when engaged in by a company with market power (dominance). These include high-profile cases in more traditional products and services markets and in newer technology markets (for example, in cases involving Microsoft’s tying of its media player and browser to its operating system). In recent years, allegations over the free distribution of products and services using digitisation and the internet have been formulated as anti-competitive tying and bundling, in particular in recent complaints involving Google. This has raised questions about whether the traditional approach of competition authorities to tying and bundling is suitable to address potential foreclosure issues in newer markets.
The European Commission’s Guidance Paper on the application of Article 102 TFEU to exclusionary abuses has stated that, although tying and bundling are similar practices, they are distinct and can raise different competition issues. The key competition law concerns with tying and bundling relate to the dominant firm leveraging its dominant
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