Despite great strides in enforcement of the cartel prohibition of
article 81 EC and major merger control reform, EC competition law still lacks
clear standards for anti-competitive abuses under article 82 EC. In a
masterful engagement with this issue, the thoughtful and original analysis in
this book focuses on tying and bundling. Although these ubiquitous business
practices are primarily addressed under article 82 EC as constituting abusive
behavior, a wealth of economics literature emphasizes their strategic and
efficiency motivations. However, there is a balance to be found, as this book
ably demonstrates. In the course of the analysis, the author zeroes in on such
central questions as the following:
• What tests are available to determine whether two products are distinct or
• Under which circumstances is anti-competitive leveraging feasible?
• Which efficiency motivations should be accepted?
• How does one valuate the possible efficiencies in the short run and the risk
of leveraging effects in the long run?
• What factors should be considered when answering the separate product issue?
• What are the implications for the burden of proof under article 82 EC?
• Does the application of a more effects-based approach under article 82 also
affect the dominance analysis?
In his examination of the various responses to these probing questions, the
author is able to formulate a very useful diagnosis of what factors determine
whether a tied or bundled entity is likely to engender anti-competitive
effects. The presentation is supported throughout by detailed reference to
relevant legal-economic doctrine, laws, and judicial interpretation by
European and U.S. courts, the European Commission, and antitrust agencies. In
its development of effects-based tests for assessing tying and bundling
practices, this important book will be of special value to policymakers and
regulatory officials involved in enforcement of EC or Member State competition
law. It will also be welcomed by academics in both law and economics as a
truly cogent and workable approach to the solution of one of the most vital
and intriguing debates in the antitrust field.
Introduction, 1. The Challenges of Modernization 2. The
Object and Scope of This Book 3. Outline of the Book
Part I – General Aspects of Tying and Bundling Chapter 1
- The Economics of Tying and Bundling 1. Introduction 2.
Categorisation of Tying and Bundling 3. Efficiency Motivations 4.
Anti- Competitive Motivations 5. Special Topics in Relation to Tying
and Bundling 6. What are the Legal Implications of the Economics
Literature? 7. Conclusions Chapter 2 - The Leveraging Theory in
General under US and EC Law 1. Introduction 2. The Connection
between Dominance and Abuse 3. Comparing the US and EC Model 4.
The Legal Position of the Multi-Market Requirement 5. Discussion of the
Multi-Market Scenarios under EC Law 6. Conclusions
Part II - Ex Post Regulation Chapter 3 –
Tying and Bundling under US Antitrust Law 1. Introduction 2. A
Trilogy of Antitrust Scrutiny 3. The Chequered History of Bundling
Analysis 4. The Separate-Product Issue 5. Discussion of the
Legal Standard for Tying and Bundling 6. Efficiencies due to Tying and
Bundling 7. Conclusions Chapter 4 – Tying and Bundling under EC
Law 1. A Dual System of Ex Post Rules 2. General Observations
Regarding Tying and Bundling 3. A Critical-Historical Overview 4.
The Separate-Product Issue 5. Legal-Economic Analysis of the Community
Trilogy on Tying and Bundling 6. Choosing a Standard for Tying and
Bundling 7. Conclusions Part III – Ex
Ante Regulation Chapter 5 – Tying and Bundling under US and EC Merger
Control 1. Introduction 2. An Outline of the US and EC Merger
Rules 3. Tying and Bundling under US Law 4. The EC Approach
Towards Tying and Bundling Concerns 5. Evaluation of the Theory of
Leveraging Harm 6. Conclusions, Conclusions 1. Introductory
Remarks 2. There are Convergences and Divergences between US and EC Law
3. Economics as a Useful tool for the Analysis of Tying and Bundling 4.
A Structured Effects-Based Rule of Reason Test 5. A Preference for ex
post Control 6. A Critical Examination of the Tying and Bundling
Trilogy 7. The Commission’s Discussion Paper on Article 82,
Bibliography, Table of cases, Index