Software Integration From An Antitrust Perspective: How should technical tying claims be analysed?

This thesis argues that the current EU approach toward regulating unilateral conduct by dominant firms is not firmly anchored to a unified economic theory; thus without a strong emphasis on the welfare of the consumers and the ability to determine whether a particular conduct by a dominant firm is in fact harmful or whether it offered efficiencies for consumers. Nor does it provide adequate flexibility to be applied to certain practices such as technical integration in the software industry, which differs considerably from traditional markets and has unique features that necessitate special consideration. This approach can negatively impact firms’ incentives and the capability to innovate, and it brings new problems for firms operating in such markets by not providing them with legal certainty to check whether their technical integration products infringe competition law. In addition, the current approach can lead to a condemnation of procompetitive practice in such markets, which are more prone to enforcement errors. There is a strong likelihood that such a perspective will remain entrenched as long as the traditional metrics in competition law, such as price and output, are taken as the essential methods for assessing the competition process in fast-moving innovation markets. Therefore, this thesis argues in favour of the adoption of a consistent framework for assessing an exclusionary tying claim and where the primary objective of the competition rules is consumer welfare, with access to modern microeconomic insights and economic tools.