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Hull, David W. --- "Tying: A Transatlantic Perspective" [2006] ELECD 526; in Marsden, Philip (ed), "Handbook of Research in Trans-Atlantic Antitrust" (Edward Elgar Publishing, 2006)

Book Title: Handbook of Research in Trans-Atlantic Antitrust

Editor(s): Marsden, Philip

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845421816

Section: Chapter 9

Section Title: Tying: A Transatlantic Perspective

Author(s): Hull, David W.

Number of pages: 32

Extract:

9 Tying: a transatlantic perspective
David W. Hull1


Introduction
At a time when the European Commission is rethinking its policy on the
abuse of dominant position under Article 82, the law on tying is particu-
larly ripe for reform. In the antitrust field, tying stands out as an area where
there is a stark divergence between what the law is as set out in the case law
and the general consensus in the antitrust community on what the law
should be. In both the United States and the European Union, tying is gen-
erally analyzed under some form of a per se rule, while the consensus in the
antitrust community is that it should be analyzed under the rule of reason,
which allows for a more robust economic analysis that considers effects on
the market and possible efficiencies.
In recent years, the need to bring the law on tying into line with con-
temporary economic thinking has generated extensive commentary
among antitrust lawyers and economists. The explanation for this may be
that tying is at the heart of both the US and EU versions of the recent
Microsoft case. While any key issue in such a prominent case is likely to
attract extensive comments from the antitrust community, this is particu-
larly true with tying in this case.2 First, the tying involved in Microsoft is
the kind of tying that is generally recognized as generating various
efficiencies, thus underscoring the shortcomings of a per se approach.
Second, Microsoft highlights ...