Moot II

Question 1

What is the legal basis of tying?

Answer 1

Article 102(2) D TFEU

Question 2

What are the five issues of tying?

Answer 2

1) Does the accused undertaking have a dominant position?
2) Has the dominant undertaking tied two distinct products?
3) Was the customer coerced into buying both the tying and the tied products?
4) Is the tie capable of having an anti-competitive effect?
5) Is there an objective justification for the tie?

Question 3

1. Does the accused undertaking have a dominant position?

Answer 3

The undertaking needs to have a dominant position in the tying market.

Question 4

2. Has the dominant undertaking tied two distinct products?

Answer 4

The burden of proving that two products are the subject of a tie is on the person alleging the infringement.

Commission considers two products distinct (following GC Microsoft) if: in the absence of tying, a substantial number of customers would also have bought the tying product without also buying the tied product.

Can be done by direct and indirect evidence.

Question 5

3. Was the customer coerced to purchase both the tying and the tied product?

Answer 5

1. Contractual

2. Technical