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搭售市场产品

标题：如果搭售产品的供应商在市场上占主导地位那么将有可能违反第82条EC。避免被禁止的唯一方法是通过证明搭售是可以客观合理的。一个客观的理由需要主导公司追求一个合理的目标，并且捆绑销售是一个合理和适当的手段可以实现这一目标。

1.介绍

搭售的做法需要“当买方的购买产品时需要购买者购买卖方的另一种产品。”尽管对于搭售的普遍看法是其阻碍了自由竞争，但是在竞争法中应对这一现象并没有普遍的共识：反对者和支持者将对支持和反对搭售的意见提出有效的论证。同样，经济学家们为证明提倡搭售或应该取缔提供了不同的经济理论证明。

美国和欧洲对捆绑销售做出的监管和执法反应体现了这些差异。这两个系统同时都是从搭售本身就是违法的这种自动假设开始的，美国系统随着发展认识到搭售能够带来效率和协同效应使消费者受益。

Tying Market Product

Title: Tying is likely to infringe Article 82 EC if the supplier is dominant in the market of the tying product. The only way to avoid the prohibition is by showing that tying can be objectively justified.  An objective justification requires that the dominant firm pursues a legitimate objective and that the tying is a reasonable and proportionate means to achieve that objective.

1. Introduction

The practice of tying occurs “when the seller of a product requires his purchasers to take another product as well.” Despite the general perception of tying as a practice hindering unfettered competition, there is no universally agreed response to this phenomenon in competition law: both opponents and proponents of tying put forward valid arguments in support of and against tying. Likewise, economists offer different economic theories justifying tying or arguing that it should be outlawed per se.

These differences are exemplified by the regulatory and enforcement responses to tying in the US and Europe. Whilst both systems started from the automatic presumption that tying is unlawful in itself, the US system evolved to recognise that tying is capable of bringing efficiencies and synergies benefiting consumers. This led to the re-visiting of the legal regime governing tying rules by the US Supreme Court and adoption of the more flexible rule of reason approach.

The European system, on the other hand, still generally considers tying as per se illegal practice. Unlike the US, where most of the tying cases are pursued under the section 1 of the Sherman Act (agreements to restrict trade), the EU's regulation of tying comes under Article 82 EC Treaty which prohibits various forms of abuse of dominance. Although the US courts have recognised that tying may constitute an illegal practice even in the absence of dominance, the EU courts and the EC Commission have not separated tying from the issue of dominance and oftentimes use one of the elements to find the existence of the other.

Although EU law provides for the “objective justification” exception to Article 82 abuse (including tying) if it is shown that such an abuse is objectively justified, the dominant firm pursues a legitimate objective and the tying is a reasonable and proportionate means to achieve that objective, such an exception is very limited in scope, as exemplified by the approach of the Commission and the European Courts. This limited exception does not provide sufficient framework for the rule of reason efficiencies analysis adopted in the US.

In part, the difference in the European approach is explained by the fact that challenges to tying come under the heading of abuse of dominance which applies much stricter tests and requires dominant firms to bear ‘special responsibility' to preserve competition on the market. Furthermore, the European institutions have dealt wi本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。