Under EU competition law, tying can raise concerns under the general ban on anti-competitive agreements in the EU (Article 101 of the Treaty on the Functioning of the European Union (TFEU)), as well as under the ban on abuse of a dominant position in the EU (Article 102 of the TFEU). A company therefore does not have to be dominant before it runs into concerns.
A case being investigated by the EC illustrates the issues. The EC’s investigation focuses on the practice of Rio Tinto Alcan of contractually tying the licensees of its AP aluminium smelting technology to the purchase of aluminium smelter equipment (specifically, pot tending assemblies, or PTAs) supplied by its subsidiary ECL SASU. The EC has indicated that this may result in an infringement of Articles 101 and 102, with the dominant position relevant to Article 102 being held by Rio Tinto Alcan in the market for the licensing of aluminium smelting technology.
Rio Tinto Alcan has proposed behavioural commitments to address these concerns, specifically to modify the terms of its future agreements, so that any licensee of the AP aluminium smelting technology will be entitled to purchase from any recommended PTA supplier or from ECL any PTA that meets certain technical specifications.