Bundled Discounts and EC Judicial Review

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Christian Roques, Jun 10, 2008

In Article 82(d) of the EC Treaty, bundling and tying are considered possible abuses. According to Article 82(d), it is abusive to make “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.” If bundling refers to situations where a package of two or more goods is offered, bundled discounts can be defined in a general manner as the practice of selling multiple products for a single price or, in a more restrictive manner, as the practice to economically (through rebate schemes) induce customers to only buy a bundle consisting of the two products. The Community Courts’ case law is rich with cases relating to tying or bundling practices in their classical economic form. However, the same cannot be said for the second acceptance of bundled discounts. A case similar to the U.S. case, LePage’s, for example, has not been addressed directly by the Community Courts (discussed in section I of this paper). As a consequence, the answer to the question of how to determine whether or not a bundled rebate is simply a form of price competition or an exclusionary conduct must be found in other case law relating to abusive rebate policies (discussed in section II).

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