The following discussion is for educational purposes, not meant to be legal advice.
In the EEA, it is an abuse for a company in a dominant position to make the conclusion of contracts subject to acceptance of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.
In France, the following forms of tying arrangements are prohibited:
(a) Conditional Sales: A buyer must purchase from a supplier additional goods or services in order to obtain those it originally wanted.
(b) Batch Sales: Several different goods are sold together and the total amount of the goods is lower than the aggregate sum of them individually.
(c) Minimum Quantity Sales: A buyer must purchase a minimum quantity of the goods it wants.
(d) Bonus Sales: The offer of a bonus (additional goods or services offered under attractive conditions) to induce a buyer to purchase goods or services.
In Germany, a “bonus” is defined as free goods or services that are offered to the buyer to lure the purchase of “main” goods or services. If the extra goods are integral to the “main” goods, they are not considered unlawful bonuses. If the extra goods have no reasonable connection to the “main” goods, they are considered unlawful bonuses.
Example: Company’s Z product is an environment for implementing analytic applications on the X platform. It allows users to select from a catalog of modular analytic components or to customize their own personalized modules for business analysis. The Y Suite product opens up a business intelligence platform to enable value-added resellers or end users to develop packaged, analytical, or customer business intelligence applications. Assume Company’s objective is to increase the distribution of the Z product. If Company were to offer analytic modules to customers at no additional charge when they license the Z product, such offer would not be considered an unlawful bonus because the analytic modules are unlikely to function without the Z product. If Company were to offer the Y Suite product for free when customers license the Z product, such offer would be considered an unlawful bonus because the two products are not integral to each other, and may function separately.
In Italy, tying is only forbidden when a company is in a dominant position. Factors to consider whether there is illegal tying include:
(a) Prices when products are tied as compared to prices when products are sold separately.
(b) Product quality advantages for customers in the use of products when tied as compared to product quality when products are sold separately.
(c) Monopoly position of a company when tied products come from the same company as compared to when products come from different companies.
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