Confusing Bundling with Tying under Article 82 EC: Batteries Included or it Only Comes with Fries

Authors

Robert M. Schwartz

Abstract

"Bundling" and "tying" are terms commonly used to describe business practices engaged in by undertakings at every level of economic power. In nine separate instances the Court of First Instance in its Microsoft Decision held that the Commission had established Microsoft Corporation's practice of "abusive bundling"(the first time a Community Court had used the term). The CFI also upheld the Commission's findings by indiscriminately referring to them as either "tying" or "bundling" and justifying the result because it "can be deduced both from the very concept of bundling and from the case-law...". Shortly after the Commission issued its Guidance on the Commission's Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings. The Guidance applies the same standards for evaluating bundling practices and tying practices.

This raises some knotty questions. What, exactly is the "very concept of bundling?" Is "bundling" a precise synonym for "tying?" Does their conflation aid in understanding abuses by a dominant undertaking under Article 82 EC? Does the "very concept of bundling" lead inexorably to finding abuse? Can the degree or effect of different forms of practices accurately predict competition abuses depending upon categorisation as either "bundling" or "tying"? Do formalistic tests applied to "bundling" or "tying" provide competition law answers in the real world? Last, does guidance from two recent ECJ cases provide a better framework than application of poorly defined, broadly applied labels?

Recommended Citation

Robert M. Schwartz, Confusing Bundling with Tying under Article 82 EC: Batteries Included or it Only Comes with Fries, 6 Hastings Bus. L.J. 145 (2010).
Available at: https://repository.uclawsf.edu/hastings_business_law_journal/vol6/iss1/4