Tying practices in the european competition law

Identifier:  TFG:179

Handle: https://hdl.handle.net/20.500.11797/TFG179

Authors:  Yuste Bonillo, Adrian

Abstract:
Tying products together is a common business strategy in markets. It could be defined as the practice through which the seller conditions the purchase of a product by its buyers to the purchase of a second product. Examples such as the tying of a sugar cube with the cup of coffee, or the sports section with the local news in the newspaper are clear examples of that. Although in perfect competition situations in the markets the use of these practices is fully legitimate, a different matter is when these are promoted by companies that have a dominant position in a market. Article 102 TFEU is no stranger to the problem, and dedicates its paragraph d) to prohibit the abuse of a dominant position carried out by dominant companies through tying practices. The Commission, in order to analyze whether the tying practice performed by a company is illegal, puts forward a five-step test: - Are the tying and tied products distinct? - Is the company in question dominant in the tying market? - Was the consumer conditioned to buy both tying and tied products? - Can this practice have an exclusionary effect that distorts competition in the markets? - Is that practice objectively justified? If the answer to the first four questions is affirmative and the last one is negative, it’s understood that the practice at issue is illegal and must be prohibited. However, the criteria underlying this test have recently been threatened by the application of technological advances to tying practices, in a way that many critics have raised the need to remodel them in order to be applicable to the new type of tying practices: the technological integration.