PALABRAS RIMA:
2.3.2. ESTRUCTURAS SINTÁCTICAS
The competition enforcement authorities when determining whether or not a tying practice was unlawful, were not concerned with asking if the products could be classified as a single integrated system. They did consider, on occasion, whether or not the products were physically distinct.60 This is because the question that the competition enforcement authorities were really concerned with was not, “are these two separate products?” but rather “could they be sold as two separate products?” If there was no reason why a “system”
said that there was no reason why a tie would contribute to the performance of the task assigned to La Poste, therefore this seemed to be an evaluation of potential objective justification.
60 Tetra Pak II (IV/31.043) Commission Decision 92/163/EEC [1992] OJ L72/1, para 119
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could not be broken down into separate products or services then there was no reason to allow the dominant company to prevent this from happening.
After all, if there was a genuine benefit to having the products supplied as a tie, then the consumers would see this benefit and would choose to purchase them both together of their own accord. If there wasn’t any benefit to the consumer, then the benefit must be for the dominant undertaking alone and as such it was not appropriate for the dominant undertaking to benefit at the cost of customer choice and potentially at the cost of other competitors that play an important role in constraining the dominant undertaking’s dominance.
Therefore it is possible to see that the fact that two elements of a tie were physically distinct or served differing functions was not related to determining whether they were “separate products” but rather it was part of establishing whether the elements of the tie could be sold separately or whether they had to be sold together. There is no reason why a nail gun cartridge strip has to be sold alongside its nails just as there is no reason why sugar has to be delivered to the customer by the company that makes the sugar. There is no reason why a company that has an electronic system for booking flights must also service the aircraft making those flights while they are on the ground.
There is no justification for this behaviour other than to benefit the dominant undertaking and so these ties were considered abusive. If there was some sort of benefit that would assist the customer in any way, then first, this would be an incentive for the customer to buy their product without the seller having to resort to contractual tying and second, this could be raised as an objective justification. The fact that there is no such incentive or justification is seen by the Commission and the courts as evidence that the only beneficiary is the dominant undertaking, to the detriment of customer choice. It will be argued in the section below that this, in the absence of any superior economic method of determining consumer harm, is an excellent way of determining anti-competitive tying.
It should be noted that there is a specific class of exception to rule that a tie that provides no incentive for the customer to purchase it and that has no
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objective justification will be considered abusive.61 The exception is that where there is a state granted legally monopoly, a tie may be prohibited even when there are possible objection justifications, such as increased efficiency.
In the cases of Centre Belge and De Post/La Poste there could arguably be efficiency justifications for the ties that were occurring.62 To take the strongest argument that could be made for efficiency; De Post/ La Poste was interested in tying their business mail with their normal mail. It could be argued that there are great efficiencies to be obtained if the post delivery company that is already dealing with a client’s regular mail also deal with their business mail.
For example, the postal company is likely to already be sending couriers to their premises to pick up their normal mail and therefore it would be a cost saving to also pick up their business mail while they are doing so, rather than having two separate companies sending two separate couriers to come and pick up the mail at different times in the day. However, the reason why De post/La Poste drew the ire of the Commission is related to the fact that they had a legal/statutory monopoly that they were seeking to extend through contract law.63 After all a legally conferred advantage is one that would be very difficult to challenge commercially. If a competing company cannot enter both the tying and the tied market and the dominant company refuses to supply the legally protected product without the competitive product, then all those who are dependent on the legally protected product are forced to switch to the legally protected provider. If this is a large number of customers this may have the effect of making the continued presence of the competitor in the competitive market unprofitable and force them out of the market, ipso facto extending the legal monopoly into a market that it was never intended to cover.
This is highly likely to be seen as damaging to competition in the market and therefore not taken likely by the Commission and courts. Ergo, it is argued that cases involving tying a product or service that is legally protected from competition are exceptional cases and subject to greater scrutiny. As a result
61 Subject to the elements being subject to independent customer demand and the dominant undertaking allowing the customer no freedom to purchase the goods/services separately
62 Such arguments were not considered in these judgements, but even if they were it is argued that they would be rejected.
63 De Post-La Poste (Case COMP/37.859) Commission Decision 2002/180/EC [2001] OJ L61/32, para 73; this may equally apply to Centre Belge, however it was not specified within the text of the relatively brief judgement.
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it may be that such ties will be found to be abusive even when there is some sort of efficiency that could be argued as an objective justification. This demonstrates a desire to protect free markets from state monopolies that are seeking to extend their remit further than legally intended and in the process damage competition in those markets.64
So in summary it can be seen that the requirement of the existence of a separate product was never actually established during this period. Instead the competition enforcement authorities were concerned with whether a product could be sold separately. The difficulty that arose later however was that while, for example, the delivery for sugar and sugar itself are clearly separate products/services that can be provided separately without difficulty, there are other potential “ties” that are not as clear cut.65 The first of which to come before the Commission was the Microsoft I case.66 As a consequence the Commission attempted to enunciate the rules on tying more “clearly” for the first time and it is argued that this led to “separate products” being erroneously declared a requirement for tying abuse and thus for the first time drew academic attention to the concept. 67 In reality, prior to Microsoft I, the EU competition enforcement authorities had actually been concerned with whether products could be sold separately. This was because by ensuring that products that could be sold separately were sold separately (when there was a pattern of demand) this maximised the customer’s freedom to choose the combination of products and suppliers that most suited them. This maintenance of freedom of choice was the actual test of the EU competition enforcement authorities. The reasoning behind this concern for customer freedom will be explored in the following section.
64 It is difficult to attribute this concern with a specific economic theory of competition as all of the major competition theories would be adverse to the extension of state control of markets.
However it is possible that this is a manifestation of the “as if” standard endorsed by Ordoliberalism as discussed below.
65 This ‘grey’ area will be discussed in the following chapter in relation to Microsoft.
66 Microsoft (Case COMP/C-3/37.792) [2005] 4 CMLR 965
67 Hedvig Schmidt, ‘Article 82: is technological integration checkmated?’ [2009] Journal of Business Law 354, 368-369; Jean-Yves Art, Gregory v.S. McCurdy, ‘The European Commission's media player remedy in its Microsoft decision: compulsory code removal despite the absence of tying or foreclosure’ [2004] European Competition Law Review 694, 698. These questions will be addressed in the next chapter.
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