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th a significantly lower number of tying cases than the US courts and therefore, there are still a lot of unanswered questions.

2. EC regulation of tying

2.1 Legal regime under Article 82

It should be stated at the outset that although tying may indicate some degree of dominance, it does not necessarily mean that a non-dominant firm cannot engage in tying that harms competition on the market. There is, therefore, some uncertainty as to whether tying shall be dealt with by Article 81 or 82 of EC Treaty. The US system does not regulate tying under the heads of dominance. In Eastman Kodak the Supreme Court acknowledged that a firm not having a market power (non-dominant) in the main product market may still be liable for illegal tying. The EC legal framework has always been, and still is, based on the abuse of dominance rules. It is important to recognise this limitation as it explains the overall approach of the EC institutions in this area and some of the key differences with the US system.

Legal framework for the prohibition of tying is expressly laid down in Article 82 EC which provides that “any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible within the common market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in […] (d) 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.”

Despite the unequivocal prohibition of tying in Article 82(d), economic theory of tying recognises that tying may bring about positive results for consumers. Tying is necessary or at least is a commonplace occurrence in some cases: “shoes are sold in pairs; hotels sometimes offer breakfast, lunch or dinner tied with the room; there is no such a thing as an unbundled car; and no self-respecting French restaurant would allow its patrons to drink a bottle of wine not coming from its cellar.”

The examples above exemplify how easy it is to stretch the argument of tying to absurdity by extending tying scrutiny to every constituent component of a product. If so, tying allegations can easily be started against majority of the electronic products, car and furniture manufacturers. “This is true because every product or service could be broken down into smaller components capable of being sold separately, and every seller refuses at some point to break the product down any further...”

Furthermore, economists also acknowledge that tying “may result in lower production costs. It may also reduce transaction and information costs for consumers and provide them with increased convenience and variety.” Evidently, there is a need to draw a line between what kind of behavior shall trigger application of the competition rules and which shall be treated neutrally by the system.

The US system chose to draw a line by requiring a balancing exercise between the efficiencies and the detrimental effects moving away from per se restriction of tying. The reform has started with the US Supreme Court decision in Jefferson Parish acknowledging that tying may bring about some economic benefits and that tying of two products does not restrict competition in certain cir