¹ For various criticisms see, amongst others, Fox, EM, ‘Monopolization and Dominance in the United States and the European Community: Efficiency, Opportunity, and Fairness’ (1986) 61 Notre Dame Law Review 981, 1004Google Scholar; Jebsen, P and Stevens, R, ‘Assumptions, Goals and Dominant Undertakings: The Regulation of Competition Under Article 86 of the European Union’ (1996) 64 Antitrust Law Journal 443 Google Scholar; Sher, B, ‘The Last of Steam-Powered Trains: Modernising Article 82’ (2004) 25 European Competition Law Review 243 Google Scholar; Kallaugher, J and Sher, B, ‘Rebates Revisited: Anti-Competitive Effects and Exclusionary Abuse under Article 82’ (2004) 25 Eur Comp L Rev 263 Google Scholar; Waelbroeck, D, ‘Michelin II: A Per Se Rule Against Rebates by Dominant Companies?’ (2005) 1 Journal of Competition Law and Economics 149 CrossRefGoogle Scholar; Jones, A and Sufrin, B, EC Competition Law, 3rd edn (Oxford, Oxford University Press, 2008) 321 Google Scholar.

² EC Commission, ‘DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses’ (Brussels, December 2005)Google Scholar, available at: http://ec.europa.eu/comm/competition/antitrust/art82/discpaper2005.pdf, para 55; Kroes, N, ‘Exclusionary Abuses of Dominance—the European Commission’s Enforcement Priorities’ (Fordham University Symposium New York, 25 September 2008) 3 Google Scholar.

³ EC Commission Communication—Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, OJ 2009 C45/7.

⁴ See EC Commission Discussion Paper (2005), above n 2, para 3.

⁵ Kroes, N, ‘Tackling Exclusionary Practices to Avoid Exploitation of Market Power: Some Preliminary Thoughts on the Policy Review of Article 82’ in Hawk, B (ed), International Antitrust Law and Policy: Fordham Corporate Law Institute Annual Proceedings 2005 (New York, Juris Publishing, 2006) 384 Google Scholar.

⁶ Mosso, CE and Ryan, S, ‘Article 82—Abuse of a Dominant Position’ in Faull, J and Nikpay, A (eds), The EC Law of Competition (Oxford, Oxford University Press, 1999) 146 Google Scholar; Goyder, J and Albors-Llorens, A, Goyder’s EC Competition Law, 5th edn (Oxford, Oxford University Press, 2009) 315 Google Scholar.

⁷ Jones and Sufrin, above n 1, 316.

⁸ Lyons, B, ‘The Paradox of the Exclusion of Exploitative Abuse’ in The Pros and Cons of High Prices (Swedish Competition Authority, 2007) 65 Google Scholar.

⁹ See Discussion Paper (2005), above n 2, paras 4, 54, 88. Although neither the Discussion Paper (2005) nor the Guidance (2008) provides a definition, ‘consumer welfare’ can be defined as ‘consumer surplus’, which is the aggregate measure of the surplus of all consumers. The surplus of a given consumer is the difference between her valuation of a good and the price she actually pays for it; see Motta, M, Competition Policy: Theory and Practice (Cambridge, Cambridge University Press, 2004) 18 CrossRefGoogle Scholar.

¹⁰ In this chapter, except for direct quotations and references, ‘consumer’ refers to the enduser, meaning the final consumer, whereas ‘customer’ refers to any buyer of a dominant undertaking who may or may not be a final consumer. For the implications of the difference between the two for competition law purposes see Akman, P, ‘“Consumer” versus “Customer”: the Devil in the Detail’ (forthcoming) (2010) 37 Journal of Law and Society CrossRefGoogle Scholar.

¹¹ O’Donoghue and Padilla express ‘exploitation’ as the dominant undertaking taking advantage of its market power to extract rents from consumers that would not have been possible for a non-dominant undertaking or to take advantage of consumers in some other way: O’Donoghue, R and Padilla, AJ, The Law and Economics of Article 82 EC (Oxford, Hart Publishing, 2006) 174 Google Scholar. Although this can explain harm from pricing behaviour, it does not cover non-pricing conduct which may still harm customers without the extraction of extra rents.

¹² In ‘perfect competition’, the market price of a product would be equal to the marginal cost of producing the product, delivering both productive and allocative efficiency; Bishop, S and Walker, M, The Economics of EC Competition Law: Concepts, Application and Measurement, 2nd edn (London, Sweet & Maxwell, 2002) 17, 20Google Scholar. ‘Productive efficiency’ occurs when a given set of products is being produced at the lowest possible cost (given current technology, input prices, and so on) and ‘allocative efficiency’ relates to the difference between the cost of producing the marginal product and the valuation of that product by consumers, ibid, 20. However, ‘perfect competition’ is unrealistic due to the assumptions underlying the paradigm: there are many buyers and sellers of the product, the quantity of products bought by any buyer or sold by any seller is so small relative to the total quantity traded that changes in these quantities leave market prices unchanged, the product is homogeneous, all buyers and sellers have perfect information, and there is both free entry and exit out of the market; ibid, 17.

¹³ See Akman, P, ‘Searching for the Long-Lost Soul of Article 82 EC’ (2009) 29 Oxford Journal of Legal Studies 267 CrossRefGoogle Scholar.

¹⁴ In the French and German texts, Article 82 EC prohibits ‘d’exploiter de façon abusive’ and ‘missbräuchliche Ausnutzung’ respectively.

¹⁵ Article 82 EC reads: ‘[a]ny 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 with the common market insofar as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (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’.

¹⁶ Joliet, R, Monopolization and Abuse of Dominant Position (La Haye, Martinus Nijhoff, 1970) 250 Google Scholar. For the legislative history supporting Joliet’s view see Akman, above n 13, in particular 286.

¹⁷ Joliet, above n 16, 131, 252.

¹⁸ Case 6/72 Europemballage Corp and Continental Can Co Inc v EC Commission [1973] ECR 215, para 26: ‘[a]s may further be seen from letters (c) and (d) of Article 8[2] (2), the provision is not only aimed at practices which may cause damage to consumers directly, but also at those which are detrimental to them through their impact on an effective competition structure, such as is mentioned in Article 3[(1)(g)] of the Treaty. Abuse may therefore occur if an undertaking in a dominant position strengthens such a position in such a way that the degree of dominance reached substantially fetters competition, i.e., that only undertakings remain in the market whose behaviour depends on the dominant one’.

¹⁹ Jones and Sufrin, above n 1, 320.

²⁰ In the US, for private plaintiffs to recover damages from breaches of competition law, ‘[p]laintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation’; Brunswick Corp v Pueblo Bowl-O-Mat, Inc 429 US 477, 489 (1977). Hence, without proving anticompetitive effects, harm to competition (which may then give rise to a claim for damages) will not be proven.

²¹ See, eg, Case 24/67 Parke Davis and Co v Probel, Reese, Beintema-Interpharm and Centrafarm [1968] ECR 71; Case 40/70 Sirena Srl v Eda Srl and Others [1971] ECR 69. See also Case 238/87 AB Volvo Veng v Erik Veng (UK) Ltd [1988] ECR 6211 and Case 53/87 CICRA v Renault [1988] ECR 6039, in which it was found that charging ‘unfair prices’ for spare parts by a car manufacturer that refused to license its intellectual property rights might constitute abuse. For a study on all cases, see Motta, M and Streel, A de, ‘Excessive Pricing and Price Squeeze under EU Law’ in Ehlermann, CD and Atanasiu, I (eds), What Is an Abuse of Dominant Position? (Oxford, Hart Publishing, 2006)Google Scholar. The benchmarks include the costs of the dominant undertaking, prices charged by the dominant undertaking on other markets, the prices of competitors’ products on the same market and the prices of competitors’ similar products on other markets. See Motta and de Streel, ibid, 95 ff. See also Scandlines Sverige AB v Port of Helsingborg Commission Decision (Case COMP/A.36.568/D3) 23 July 2004 (unreported), para 170 ff. This chapter uses the term ‘product’ to cover ‘services’ as well unless otherwise stated.

²² Case 26/75 General Motors Continental NV v EC Commission [1975] ECR 1367, paras 12 and 20. In this case such abuse was not found to be contrary to the EC Commission’s decision.

²³ On ‘perfect competition’, see n 12 above.

²⁴ Case 27/76 United Brands Company and United Brands Continental BV v EC Commission [1978] ECR 207, para 250.

²⁵ United Brands, ibid, para 251.

²⁶ Commission Decision 2001/463/EC of 20 April 2001 relating to a proceeding pursuant to Article 82 of the EC Treaty (Case COMP D3/34.493—DSD ), OJ 2001 L166/1, para 111. Except for Scandlines, above n 21, the EC Commission and the Courts demonstrate a problematic understanding of ‘economic value’, as they seem to equate it with ‘cost’. See, eg, Case 226/84 British Leyland plc v EC Commission [1986] ECR 3263, paras 28–30, where the ECJ explicitly looks at the factors determining the ‘cost’ of the service to find that the price is disproportionate to the ‘economic value’. In General Motors, above n 22, the ECJ states that abuse may be found in the ‘imposition of a price which is excessive in relation to the economic value of the service’ and then decides that since General Motors brought its rates into line with the ‘real economic cost’ of the operation after the complaints, there is no abuse (ibid, paras 12, 22). In Commission Decision 2001/892/EC of 25 July 2001 relating to a proceeding under Article 82 of the EC Treaty (COMP/C-1/36.915—Deutsche Post AG —Interception of cross-border mail ), OJ 2001 L331/40, para 162, the prices were found to be ‘25% above the estimated average cost and the estimated economic value for that service’ and, hence, abusive. In this decision ‘average cost’ is used interchangeably with ‘economic value’ at paras 162, 163–4 and 166. Although it is not clear from the judgment, this must also be why the ECJ in United Brands, above n 24, compared the cost and the price of the product to see whether the price was excessive in relation to its ‘economic value’; ibid, paras 250–51. However, in a recent preliminary ruling the ECJ decided that the royalties paid to a collection society for the use of copyright protected musical works must be analysed with respect to the ‘value of that use in the trade’ and hence may be adopting the more appropriate understanding in Scandlines; see Case C-52/07 Kanal 5 Ltd and TV4 AB v STIM, judgment of 11 December 2008, nyr, para 36.

²⁷ British Leyland, above n 26, para 30.

²⁸ Deutsche Telekom was fined €12.6 million for charging ‘unfair’ prices: Commission Decision 2003/707/EC of 21 May 2003 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-1/37.451, 37.578, 37.579—Deutsche Telekom AG ), OJ 2003 L263/9, paras 4, 199, 212.

²⁹ United Brands, above n 24. para 267. For a recent EC Commission Decision applying the test in United Brands see Scandlines, above n 21.

³⁰ United Brands, above n 24, para 252. For the argument that the test is single-staged see Motta and de Streel, above n 21, 96. However, the wording used by the Court is very clear in that it requires a two-staged examination. The EC Commission adopts this latter view as well in Scandlines, above n 21, para 149.

³¹ Bishop and Walker, above n 12, 43; Jones and Sufrin, above n 1, 586.

³² Deutsche Post AG —Interception of cross-border mail, above n 26, paras 159, 162.

³³ Case 110/88 François Lucazeau and others v Societe des Auteurs, Compositeurs et Editeurs de Musique (SACEM) [1989] ECR 2811, para 25. See also Case 30/87 Bodson v Pompes Funèbres des Régions Libéréés [1988] ECR 2479 and Case 395/87 Ministère Public v Tournier [1989] ECR 2521.

³⁴ Whish, R, Competition Law, 6th edn (Oxford, Oxford University Press, 2009) 709 Google Scholar.

³⁵ O’Donoghue and Padilla, above n 11, 608. See similarly Fisher, FM, ‘Monopolization versus Abuse of Dominant Position: An Economist’s View’ in Hawk, B (ed), International Antitrust Law & Policy: Fordham Corporate Law 2003 (New York, Juris Publishing Inc, 2004) 160 Google Scholar; den Bergh, RJ van and Camesasca, PD, European Competition Law and Economics A Comparative Perspective (Antwerpen-Groningen/Oxford, Intersentia/Hart, 2001) 259 Google Scholar; Jones and Sufrin, above n 1, 588.

³⁶ O’Donoghue and Padilla, above n 11, 605, 608.

³⁷ Evans, DS and Padilla, AJ, ‘Excessive Prices: Using Economics to Define Administrable Legal Rules’ (2005) 1 Journal of Competition Law and Economics 97 CrossRefGoogle Scholar.

³⁸ Motta and de Streel, above n 21, 108. This explanation goes back to the ‘Chicago School’ of antitrust according to which monopoly is self-destructive; monopoly prices will eventually attract entry, Easterbrook, FH, ‘The Limits of Antitrust’ (1984) 63 Texas Law Review 1 Google Scholar, 2. Scrutiny of excessive pricing has been rejected by US courts. See eg Justice Scalia opining that the charging of ‘monopoly’ prices is not only ‘not unlawful’, but also ‘an important element of the free-market system’ in Verizon Communications Inc v Law Offices of Curtis V Trinko LLP 540 US 398, 407; 124 S Ct 872 (2004).

³⁹ This paragraph mainly draws on Akman, P, ‘To abuse, or not to abuse: discrimination between consumers’ (2007) 32 European Law Review 492 Google Scholar.

⁴⁰ Akman, above n 39. See similarly Gerard arguing that discrimination among final consumers who do not compete with each other may also give rise to an issue of exploitation: D Gerard, ‘Price Discrimination under Article 82(c) EC: Clearing up the Ambiguities’ in Global Competition Law Centre Research Papers on Article 82 EC—July 2005, available at: http://www.coleurop.be/content/gclc/documents/GCLC%20Research%20Papers%20on%20Article%20-82%20EC.pdf, 122 fn 68. Nonetheless, he further notes that the EC Commission should make clear that price discrimination might constitute an abuse under Art 82(c) EC only to the extent that it results in a distortion of competition among the dominant undertaking’s trading parties, ibid, 107.

⁴¹ EC Commission Discussion Paper (2005), above n 2, para 141.

⁴² Commission Decision 2000/12/EC of 20 July 1999 relating to a proceeding under Article 82 of the EC Treaty and Article 54 of the EEA Agreement (Case IV/36.888—1998 Football World Cup ), OJ 2000 L5/55, para 100.

⁴³ Ibid, para 102.

⁴⁴ Nonetheless, as this decision has not been appealed, and the ECJ judgment to which the EC Commission refers actually held that subparagraph (c) was an example of Art 82 EC not being limited to behaviour directly harming consumers [Continental Can, above n 18, para 26], it is not possible to know whether it would have been upheld by the courts.

⁴⁵ ‘Genuine’ international mail was considered to be letter mail without any references to entities residing in Germany. In A-B-A remail, letters come from State A but are posted in State B for delivery in State A, Cases C-147/97 and C-148/97 Deutsche Post AG v Gesellschaft fur Zahlungssysteme mbH and Citicorp Kartenservice GmbH [2000] ECR I-825, para 12.

⁴⁶ Deutsche Post AG—Interception of cross-border mail, above n 26, para 127.

⁴⁷ Ibid, above n 26, para 133. The German addressees were also consumers who were affected in a negative manner especially due to the delays, ibid . Deutsche Post was fined €1000 and the decision was not appealed, thus the courts were not faced with the issue.

⁴⁸ BdKEP—Restrictions on Mail Preparation Commission Decision (Case COMP/38.745) 20 October 2004 (unreported), paras 93 and 95.

⁴⁹ See, eg, Lage, SM and Allendesalazar, R, ‘Community Policy on Discriminatory Pricing: A Practitioner’s Perspective’ in Ehlermann, CD and Atanasiu, I (eds), What Is an Abuse of Dominant Position? (Oxford, Hart Publishing, 2006) 341 Google Scholar; Geradin, D and Petit, N, ‘Price Discrimination under EC Competition Law: Another Antitrust Doctrine in Search of Limiting Principles?’ (2006) 2 Journal of Competition Law and Economics 479, 487CrossRefGoogle Scholar; Waelbroeck, M, ‘Price Discrimination and Rebate Policies under EU Competition Law’ in Hawk, B (ed), International Antitrust Law & Policy: Fordham Corporate Law 1995 (New York, Juris Publishing, 1996) 160 Google Scholar; Jones and Sufrin, above n 1, 443, 594.

⁵⁰ The stance seems to slightly change in Case C-95/04 P British Airways plc v EC Commission [2007] ECR I-2331, para 144. Still another argument is that this part of subparagraph (c) is easily dealt with since the use of ‘thereby’ suggests that it is presumed that a competitive disadvantage flows from the application of ‘dissimilar conditions’; Furse, M, Competition Law of the EC and UK, 6th edn (Oxford, Oxford University Press, 2008) 346 Google Scholar.

⁵¹ See, eg, Armstrong, M and Vickers, J, ‘Price Discrimination, Competition and Regulation’ (1993) 41 Journal of Industrial Economics 335 CrossRefGoogle Scholar, 336; Gerard, above n 40, 105; Perrot, A, ‘Towards an Effects-based Approach of Price Discrimination’ in The Pros and Cons of Price Discrimination (Swedish Competition Authority, 2005) 168 Google Scholar.

⁵² See Schmalensee, R, ‘Output and Welfare Implications of Monopolistic Third-Degree Price Discrimination’ (1981) 71 American Economic Review 242 Google Scholar; Report by the EAGCP, ‘An Economic Approach to Article 82’ (July, 2005), available at: http://ec.europa.eu/comm/competition/publications/studies/eagcp_july_21_05.pdf, 31; and Varian, HR, ‘Price Discrimination and Social Welfare’ (1985) 75 American Economic Review 870, 871Google Scholar. In economics, ‘price discrimination’ is defined as the ability to set prices so that the difference between average prices and average costs varies between different sales of either the same good or closely related goods; Church, J and Ware, R, Industrial Organization (Singapore, Irwin McGraw-Hill, 2000) 160 Google Scholar.

⁵³ Motta, above n 9, 496.

⁵⁴ Muysert, P, ‘Price Discrimination— An Unreliable Indicator of Market Power’ (2004) 25 European Competition Law Review 350, 353Google Scholar; Kolasky, WJ, ‘What Is Competition? A Comparison of US and European Perspectives’ [2004] (Spring-Summer) The Antitrust Bulletin 29, 34 Google Scholar.

⁵⁵ Perrot, above n 51, 168.

⁵⁶ Geradin and Petit, above n 49, 483; Lage and Allendesalazar, above n 49, 17.

⁵⁷ EAGCP Report, above n 52, 32.

⁵⁸ Whish, above n 34, 709.

⁵⁹ Paulis, E, ‘Article 82 EC and Exploitative Conduct’ in Ehlermann, CD and Marquis, M (eds), European Competition Annual 2007: A Reformed Approach to Article 82 EC (Oxford, Hart Publishing, 2008) 517 Google Scholar.

⁶⁰ Blumenthal, W, ‘Discussant Comments on Exploitative Abuses under Article 82 EC’ in Ehlermann, CD and Marquis, M (eds), European Competition Annual 2007: A Reformed Approach to Article 82 EC (Oxford, Hart Publishing, 2008) 578 Google Scholar.

⁶¹ See Fox, EM, ‘What is Harm to Competition? Exclusionary Practices and Anticompetitive Effect’ (2002) 20 Antitrust Law Journal 371 Google Scholar, questioning whether there is ultimately only one type of abuse, namely exploitative. See also Akman, P, ‘Article 82 Reformed? The EC Discussion Paper on Exclusionary Abuses’ [2006] (December) Journal of Business Law 816, 821–2Google Scholar. Interestingly, in all EC cases where ‘unfair pricing’ is an issue, there is an additional practice other than ‘unfair pricing’ which is scrutinised as well. It is usually discrimination (United Brands, above n 24; Deutsche Post AG—Interception of cross-border mail, above n 26), but in some cases different practices are scrutinised— especially those impeding market integration, such as curbing of parallel trade (General Motors, above n 22), refusal to supply (United Brands, above n 24); Deutsche Post AG—Interception of cross-border mail, above n 26), creating barriers to reimportations (British Leyland, above n 26) or to free movement of goods (Renault, above n 21; Case 78/70 Deutsche Grammophon Gesellschaft mbH v Metro-SB-Grossmarkte GmbH & Co KG [1971] ECR 487).

⁶² See Motta and de Streel, above n 21; Röller, LH, ‘Exploitative Abuses’ in Ehlermann, CD and Marquis, M (eds), European Competition Annual 2007: A Reformed Approach to Article 82 EC (Oxford, Hart Publishing, 2008)Google Scholar. See also Lyons, above n 8, whose argument somewhat differs regarding the conditions for intervention.

⁶³ Case C-179/90 Merci convenzionali porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR I-5889, para 19.

⁶⁴ Case C-41/90 Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] ECR I-1979, para 31.

⁶⁵ Commission Decision 82/861/EEC of 10 December 1982 relating to a proceeding under Article 86 of the EEC Treaty (IV/29.877—British Telecommunications ) OJ 1982 L360/36, para 34.

⁶⁶ Commission Decision 1999/328/EC of 12 April 1999 relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty and Articles 53 and 54 of the EEA Agreement (Cases No IV/D-1/30.373—P & I Clubs, IGA and No IV/D-1/37.143—P & I Clubs, Pooling Agreement), OJ 1999 L125/12, para 128.

⁶⁷ P&I Clubs, ibid, para 128.

⁶⁸ Klaus Höfner, above n 64, para 29. See, similarly, Port of Genoa, above n 63, para 16.

⁶⁹ Klaus Höfner, above n 64, para 29; Port of Genoa, above n 63, para 17.

⁷⁰ Klaus Höfner, above n 64, para 31.

⁷¹ Port of Genoa, above n 63, para 19.

⁷² Klaus Höfner, above n 64, para 32.

⁷³ As put by Hicks, ‘[t]he best of all monopoly profits is a quiet life’, which expresses the inefficiency that would result from the monopolist not being pressured to reduce its costs and maximise its productive efficiency; Hicks, JR,‘Annual Survey of Economic Theory: The Theory of Monopoly’ (1935) 3 Econometrica 1, 9CrossRefGoogle Scholar.

⁷⁴ O’Donoghue and Padilla, above n 11, 640.

⁷⁵ Case 127/73 Belgische Radio en Televisie v SV SABAM and NV Fonior [1974] ECR 313, para 15.

⁷⁶ Ibid, para 8.

⁷⁷ Commission Decision 82/204/EEC of 4 December 1981 relating to a proceeding under Article 86 of the EEC Treaty (IV/29.971—GEMA statutes ) OJ 1982 L94/12, para 36.

⁷⁸ Case 395/87 Ministere public v Jean-Louis Tournier [1989] ECR 2521, para 46.

⁷⁹ DSD, above n 26, para 112.

⁸⁰ United Brands, above n 24, para 190.

⁸¹ United Brands, above n 24, para 182.

⁸² Case T-83/91 Tetra Pak International SA v EC Commission [1994] ECR II-755, para 140.

⁸³ For the argument that most of the terms in Tetra Pak II were onerous in the extreme and many of them were objectionable not only because they exploited consumers, but also because they had the effect of denying competitors sufficient customers to reach economies of scale and scope in order to more effectively challenge Tetra Pak’s near-monopoly, see O’Donoghue and Padilla, above n 11, 652.

⁸⁴ For tying and bundling as an exclusionary leveraging abuse see Langer, J, Tying and Bundling as a Leveraging Concern under EC Competition Law (The Netherlands, Kluwer Law International, 2007)Google Scholar.

⁸⁵ Jones and Sufrin, above n 1, 514. When the supplier is willing to supply each product separately but the customer gets an advantageous deal if they are bought together, the practice is called ‘mixed bundling’. When the components of the package are only supplied together, the practice is called ‘pure bundling’. A form of pure bundling is ‘technological tying’ where the supplier physically integrates the products in some way, so that neither is available without the other, ibid, 515.

⁸⁶ Commission Decision 88/138/EEC of 22 December 1987 relating to a proceeding under Article 86 of the EEC Treaty (IV/30.787 and 31.488—Eurofix-Bauco v Hilti ) OJ 1988 L65/19, paras 74–5.

⁸⁷ Commission Decision 92/163/EEC of 24 July 1991 relating to a proceeding pursuant to Article 86 of the EEC Treaty (IV/31.043—Tetra Pak II ) OJ 1992 L72/1, para 117.

⁸⁸ Jones and Sufrin, above n 1, 521.

⁸⁹ Jones and Sufrin, above n 1, 521.

⁹⁰ Hilti, above n 86, para 75.

⁹¹ Case T-201/04 Microsoft Corp v EC Commission [2007] ECR II-3601, paras 961 ff.

⁹² Ibid, paras 969–70.

⁹³ Jones and Sufrin, above n 1, 517–18.

⁹⁴ For antitrust injury, see n 20 above.

⁹⁵ Farrell, J and Katz, ML, ‘The Economics of Welfare Standards in Antitrust’ (2006) 2 Competition Policy International 3, 5Google Scholar.

⁹⁶ Ibid, 5.

⁹⁷ Ibid, 6.

⁹⁸ Ibid, 6.

⁹⁹ Ibid, 8.

¹⁰⁰ Ibid, 8. The authors thus suggest that the debate over ‘the standard’ of competition law and policy is the debate over the standard applied in the second prong.

¹⁰¹ Case T-203/01 Manufacture Francaise des Pneumatiques Michelin v EC Commission [2003] ECR II-4071, para 237; Microsoft, above n 91, para 867.

¹⁰² See Haracoglou arguing that, although it is untested, it appears that the ambit of Art 82 EC is sufficiently wide to allow for an interpretation that would cover the situation where access to a product is restricted despite consumer demand and there is no apparent harm to competition; Haracoglou, I ‘Competition Policy Law, Consumer Policy and the Retail Sector: the systems’ relation and the effects of a strengthened consumer protection policy on competition law’ (2007) 3 The Competition Law Review 175, 204Google Scholar.

¹⁰³ O’Donoghue and Padilla, above n 11, 647.

¹⁰⁴ O’Donoghue and Padilla, above n 11, 647–8.

¹⁰⁵ Jones and Sufrin, above n 1, 320.

¹⁰⁶ Jones and Sufrin, above n 1, 320–21.

¹⁰⁷ Jones and Sufrin, above n 1, 321, 586.

¹⁰⁸ EC Commission Discussion Paper (2005), above n 2, para 1.

¹⁰⁹ Akman, above n 61, 821–2.

¹¹⁰ EC Commission Guidance (2008), above n 3, para 19.

¹¹¹ EC Commission Guidance (2008), above n 3, para 7.

¹¹² Röller, above n 62, 528 ff.

¹¹³ Ibid, 528–9.

¹¹⁴ Ibid, 529.

¹¹⁵ Ibid, 530–31.

¹¹⁶ Lyons, above n 8, 83.

¹¹⁷ Ibid, 83.

¹¹⁸ Ibid, 83–4.

¹¹⁹ See, eg, Opinion of Advocate General Kokott on 23 February 2006 in Case C-95/04 British Airways plc v EC Commission [2007] ECR I-2331, para 71.

¹²⁰ Joliet, above n 16, 131.