Tying law in the European Union: theory and application

This research investigates the theoretical foundations of EU competition tying law. While tying prohibitions have existed in the EEC Treaty since 1957 the theoretical foundations of tying are not well understood. This thesis provides crucial insight into the theory and theoretical validity of tying law. This thesis focuses on answering three questions in relation to tying: One, what was the original economic theory underlying the prohibition on tying? Two, how has this changed and on what economic principles is tying law currently based? Three, are these principles appropriately aligned with the current state of economic thinking? In order to answer these three questions this thesis considers three leading schools of thought in competition law (Ordoliberalism, the Chicago School of antitrust analysis and post-Chicago antitrust analysis) before analysing the jurisprudence of the EU Commission and courts and establishing which theory forms the foundation of EU tying law. This research makes an interdisciplinary contribution through the use of both legal-historical analysis and legal-economic analysis. This yields important results on the historical development of tying law in Europe and also provides an economic analysis of the validity of EU law, assessing whether the aims of the law are economically valid and effectively applied. Where there are failures in the application of the law, normative proposals are given in order to demonstrate how the law and its application can be improved. The result of this analysis is to establish two distinct periods of theoretical influence (the author calls these the mono- and di-theoretical periods). A novel analysis of the tying decisions made in the software market is also presented and a new theory of foreclosure proposed that explains the decisions made in that market