EU Competition Law and Policy - compal

©Ariel Ezrachi, December 2012
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as abusive ‘making the conclusion of contracts subject to 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.’
C-333/94 P Tetra Pak International SA v Commission 252
T-201/04 Microsoft Corp. v Commission 253
COMP/C-3/39.530 Microsoft (Tying) 256
Two lines of defence are noteworthy when considering claims of tying. The first stems from the
need to identify the existence of two products or two markets in order to establish tying.
Consequently, the dominant undertaking will often attempt to establish that the two products
actually comprise one and therefore by their nature and characteristics should be sold together.
Another common, yet rather more general, line of defence addresses the objective justifications,
such as economies of scale, efficiencies and safety considerations which may justify tying the
products. See below, the discussion on objective justification.
Objective Justification and Efficiency Defence
Article 102 TFEU does not include an exempting provision similar to Article 101(3) TFEU.
Nonetheless, seemingly abusive conduct, may escape prohibition under Article 102 TFEU if the
dominant undertaking can provide an objective justification for its actions or show that the
actions generate efficiencies which outweigh the anticompetitive effects. These defence claims
are difficult to prove and have commonly been rejected by the Commission and Courts. The
Commission’s proposed effects based approach to Article 102 TFEU may open the way for
greater consideration of these claims.
T-228/97 Irish Sugar v Commission
T-30/89 Hilti v Commission
T-191/98 Atlantic Container Line AB and others v Commission
T-340/03 France Télécom SA v Commission
C-95/04 P British Airways v Commission
T-228/97 Irish Sugar plc v Commission
COMP/37.990 Intel Corporation
An Economic Approach to Article 102 TFEU
The traditional approach to Article 102 TFEU described earlier encompasses two distinct steps:
first, dominance needs to be established, following which the abuse of dominance is assessed.
In July 2005 the Commission published a consultation paper titled ‘An Economic Approach to
[Article 102 TFEU]’ in which the Economic Advisory Group for Competition Policy (EAGCP)
questioned the merit of this traditional approach. The paper advocates an effects-based approach
focusing on competitive harm, and refrains categorizing certain behaviours as abusive. It stems
from the understanding that the same types of actions may result in different effects on the
market, some abusive and others not. Similarly, different types of actions may lead to the same
anticompetitive effect. It is important to note that the paper has no binding power, yet it has
stimulated the debate over the realm of Article 102 TFEU and raised important questions as to
its past and present application.
In December 2005 the Commission published its ‘Discussion paper on the application of
[Article 102 TFEU] to exclusionary abuses’ (the 2005 Discussion Paper). The paper outlined the