Competition Law in Law Database Subscription Bundling in Morocco

1. Introduction

Law database subscription bundling refers to the practice of supplying legal research materials—such as legislation, court judgments, legal commentary, case reports, regulatory updates, and legal journals—in a combined subscription package rather than offering each service separately.

In Morocco, this practice may arise where legal publishers, digital legal research platforms, professional associations, or other information providers bundle access to Moroccan legislation, judicial decisions, French-language legal commentary, Arabic-language legal resources, and comparative or international legal materials.

Bundling can be commercially beneficial because it reduces transaction costs, makes legal research easier, and allows publishers to recover the cost of maintaining comprehensive databases. However, it can raise competition concerns when a powerful provider uses its position in one market to compel customers to purchase another service, exclude competing databases, or impose restrictive contractual conditions.

The central competition-law question is whether bundling improves the value of legal research services or unfairly restricts competition in the market for legal information.

Morocco's competition-law framework principally involves Law No. 104-12 on the freedom of prices and competition, as amended, and Law No. 20-13 concerning the Competition Council, as amended. The analysis must also consider the characteristics of digital information markets, intellectual property, customer switching costs, and access to essential legal materials.

2. Legal framework in Morocco

A. Law No. 104-12: Freedom of prices and competition

The principal provisions relevant to database subscription bundling include:

Article 6 — Anticompetitive agreements: Addresses agreements, concerted practices, and arrangements that have the object or potential effect of preventing, restricting, or distorting competition.

Article 7 — Abuse of a dominant position: Addresses abusive conduct by an undertaking holding a dominant position in a relevant market.

Merger-control provisions: Apply where a transaction meets the applicable statutory conditions and may substantially affect competition.

Competition Council enforcement: Potentially permits investigation and corrective action where conduct falls within the law's prohibitions.

These provisions should be applied to the facts of the particular subscription arrangement. Bundling is not automatically unlawful merely because separate products are technically available or because one supplier has a large market share.

B. Defining the relevant market

The relevant market may include one or more of the following:

Moroccan legislation and regulatory materials.

Moroccan case-law databases.

Professional legal commentary and annotated legislation.

Comprehensive legal research platforms.

International or comparative-law databases used by Moroccan practitioners.

The analysis should assess whether customers can realistically substitute one database for another. Factors include language coverage, completeness, search functionality, update frequency, citation reliability, specialist content, interoperability, and institutional procurement requirements.

C. Dominance and digital market power

A database provider may have substantial market power where it controls unique editorial content, authoritative annotations, a particularly comprehensive archive, or a platform deeply embedded in law firms, universities, courts, or government institutions.

However, exclusive copyright, popularity, or a large subscription base does not alone establish dominance or abuse. Market definition, competitive constraints, entry barriers, and actual customer alternatives must be examined.

D. Economic dependence and contractual fairness

Article 7 is particularly relevant where a law firm, university, or legal research institution depends on a particular database and has no equivalent alternative.

A provider could face scrutiny if it:

Makes access to essential legal materials conditional on buying unrelated research products.

Discontinues a standalone subscription without a credible commercial justification.

Applies discriminatory prices to comparable institutional customers.

Uses long-term contracts or technical restrictions to prevent customers from switching providers.

Article 9 may also be relevant to the assessment of agreements that generate economic or technical efficiencies, subject to the statutory conditions.

3. Forms of potentially anticompetitive bundling

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1. Pure bundling

The provider sells legislation, case law, and commentary only as a single package, without offering the components separately. This may be problematic if a dominant provider prevents customers from buying competing products through this arrangement.

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2. Mixed bundling

The provider sells individual databases but offers a substantial discount for the complete package. This is usually legitimate, but a dominant supplier's discount structure may become exclusionary if equally efficient competitors cannot compete for the contestable portion of customer demand.

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3. Tying and conditional access

Customers must purchase an additional product, such as international case law or legal analytics, to obtain a core Moroccan legislation database. This is especially concerning if the core database is difficult to replace.

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4. Institutional and exclusivity bundling

A provider offers a university or government institution a large discount in exchange for exclusive use of its complete platform. The concern is whether the agreement forecloses rival suppliers from reaching an important share of customers.

4. Detailed case-law analysis — at least six cases

Important qualification: The following are established foreign competition-law decisions used as comparative authorities for analysing bundling. They should not be represented as Moroccan Competition Council judgments. The principles may inform economic analysis, but Moroccan liability must be established under Moroccan law.

Case 1: Microsoft Corp. v Commission (2007)

Citation: Case T-201/04, General Court of the European Union, judgment of 17 September 2007.

Facts: Microsoft supplied Windows with Windows Media Player and was also found to have unlawfully restricted interoperability information needed by competing server-software providers.

Legal principle: The General Court upheld the finding concerning the tying of Windows Media Player to Windows. The products were economically distinct, and bundling could give Microsoft's product a distribution advantage that competing media players could not match.

Application to Morocco: A dominant legal database provider could face a comparable concern if access to a widely used legislation database automatically requires the purchase of a separate analytics or international-law service, substantially disadvantaging specialist rivals.

Lesson: Product integration is not automatically unlawful; the decisive questions include dominance, separate demand, coercion, and likely competitive foreclosure.

Case 2: Tetra Pak International SA v Commission (1996)

Citation: Case C-333/94 P, Court of Justice of the European Communities, judgment of 14 November 1996.

Facts: The dispute concerned Tetra Pak's position in packaging systems and its conduct across closely related markets.

Legal principle: The Court upheld the Commission's decision concerning abusive conduct by a dominant undertaking, while recognising that conduct in a related market can be relevant under particular circumstances. The case is not a direct legal-database bundling precedent.

Application to Morocco: A legal information company that dominates annotated Moroccan legislation might attempt to extend that position into legal document automation or compliance software by tying the products together.

Lesson: The relationship between the markets and the evidence of market power matter; dominance in one market does not automatically establish illegality in another.

Case 3: Hilti AG v Commission (1991)

Citation: Case T-30/89, Court of First Instance of the European Communities, judgment of 12 December 1991.

Facts: Hilti held a strong position in the market for nail guns and was found to have engaged in abusive conduct involving compatible nails and cartridges.

Legal principle: The case concerned the use of market power and restrictions involving complementary products. It supports scrutiny of conduct that limits customers' ability to obtain compatible products from independent suppliers.

Application to Morocco: Suppose a legal database provider makes its proprietary citation-management software compatible only with its own bundled document collection, despite the availability of technically feasible competing collections. Such restrictions could warrant investigation if they reinforce dominance and impede competition.

Lesson: Compatibility restrictions and complementary-product strategies deserve scrutiny where they restrict meaningful customer choice.

Case 4: Google Android — European Commission decision (2018)

Citation: European Commission, Case AT.40099, Google Android, decision of 18 July 2018.

Facts: The Commission examined contractual restrictions involving Google's Android ecosystem, including requirements connecting access to certain Google services with other applications and licensing arrangements.

Legal principle: The decision illustrates how contractual conditions and tying arrangements can strengthen a platform's position and disadvantage competing services. Its specific findings concern the Android ecosystem, not legal databases.

Application to Morocco: A database operator that controls a major legal research platform might condition favourable access or licensing on customers adopting its separate search, drafting, or analytics service.

Lesson: Competition authorities may examine the combined effects of several contractual restrictions rather than treating each term in isolation.

Case 5: IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG (2004)

Citation: Case C-418/01, Court of Justice of the European Communities, judgment of 29 April 2004.

Facts: IMS Health controlled a particular structure used for pharmaceutical sales data, and a competitor sought access to that structure.

Legal principle: The Court considered when refusal to license intellectual property could constitute an abuse of dominance. It established demanding conditions, including the importance of the input, exclusion of effective competition in a secondary market, and the absence of objective justification, subject to the case's specific requirements.

Application to Morocco: A publisher's copyright-protected annotations may be valuable proprietary content. However, the underlying public legislation or judgments should be distinguished from original protected commentary. If a provider controls an indispensable input, refusal to license it may require closer scrutiny—but the demanding conditions for compulsory access must be met.

Lesson: Essential legal information and copyrighted editorial contributions must not be treated as legally identical.

Case 6: Commercial Solvents Corp. v Commission (1974)

Citation: Joined Cases 6/73 and 7/73, Court of Justice of the European Communities, judgment of 6 March 1974.

Facts: The case concerned a dominant supplier's refusal to continue supplying a raw material to a customer competing in a downstream market.

Legal principle: The Court upheld findings of abuse where the dominant undertaking's conduct threatened to eliminate a downstream competitor and was not justified in the circumstances.

Application to Morocco: If a database provider supplies essential legal-data feeds to independent legal research services and then withdraws access to prevent those services from competing downstream, the conduct could warrant examination under the relevant Moroccan rules.

Lesson: Control of an important input may be used to exclude downstream competitors, but not every refusal to license proprietary content is unlawful.

Case 7: Microsoft v Commission — interoperability and server software (2007)

Citation: Case T-201/04, General Court of the European Union.

Facts: Alongside the media-player tying issue, the proceedings addressed Microsoft's refusal to provide interoperability information to competing work-group server-software suppliers.

Legal principle: The decision illustrates that restrictions on interoperability may reinforce a dominant firm's position where competitors need access to particular information to offer viable competing products.

Application to Morocco: A legal database could raise similar issues if its export formats, citation identifiers, application programming interfaces, or search tools prevent customers from transferring their research into competing software without a legitimate technical or intellectual-property justification.

Lesson: Competition analysis should include interoperability, switching costs, and access to data, not merely subscription prices.

These comparative decisions do not establish that any particular Moroccan database provider has infringed Moroccan law.

5. Applying Moroccan competition law to a hypothetical dispute

Consider a hypothetical Moroccan provider, Atlas Legal Research, which controls a substantial share of subscriptions to a specialised database of annotated Moroccan legislation.

It requires all institutional customers to buy a package containing the legislation database, international judgments, and legal analytics. It also offers a large package discount that becomes available only if customers commit to using the entire platform for several years.

The following issues would arise.

Potential legal outcomes

No infringement: The bundle is optional, provides genuine savings, preserves customer choice, and does not materially exclude competitors.

Further investigation: A dominant supplier uses long-term contracts, substantial discounts, or technical restrictions that appear to disadvantage rivals.

Potential abuse: Evidence establishes that a dominant supplier imposes anticompetitive tying or unjustified discriminatory conditions that restrict competition, contrary to Article 7.

Potential agreement infringement: If competing database suppliers collectively agree to bundle products, divide institutional customers, or exclude rival platforms, Article 6 may become relevant.

6. Economic effects of subscription bundling

A. Potential benefits

Bundling may create legitimate efficiencies:

Lower combined subscription prices.

Reduced procurement and administrative costs.

Integrated searching across legislation, judgments, and commentary.

Better cross-referencing and fewer duplicate records.

Predictable expenditure for law firms and universities.

Greater investment in digitisation and editorial accuracy.

B. Potential harms

Bundling may also create competitive risks:

Market foreclosure: Specialist legal databases lose access to customers who must buy a comprehensive package.

Artificial switching costs: Customers lose accumulated annotations, saved research, citation histories, or workflows when they change providers.

Price opacity: Customers cannot readily assess the individual cost of each database component.

Exclusionary discounting: Deep discounts on the full package make it difficult for rivals to compete for individual components.

Reduced innovation: Smaller providers have fewer customers and less revenue to develop Arabic-language search, Moroccan case-law coverage, or specialised legal tools.

Customer lock-in: Long contracts and incompatible formats make alternative services commercially unattractive.

The competition authority should evaluate these effects using actual market evidence, not merely the existence of a bundle.

7. Remedies and compliance measures in Morocco

Where a competition concern is substantiated, possible corrective approaches—subject to the Competition Council's statutory powers and the facts—include:

Unbundled subscription options: Allow customers to purchase core legislation, case law, and commentary separately.

Transparent pricing: Disclose the individual and combined prices of material components.

Non-discriminatory access: Apply equivalent commercial conditions to similarly situated customers.

Proportionate contract duration: Avoid unnecessarily restrictive exclusivity and renewal clauses.

Data portability: Enable customers to export their own annotations and research records in usable formats, subject to applicable rights.

Interoperability: Provide technically feasible integration options on reasonable terms where appropriate and legally required.

Internal compliance reviews: Document the commercial rationale, cost savings, and competitive effects of bundled offers.

These measures are potential remedies or compliance safeguards, not automatic legal obligations for every database provider.

8. Conclusion

Law database subscription bundling in Morocco must be assessed under the country's competition-law framework, particularly Articles 6 and 7 of Law No. 104-12, as amended. The decisive question is whether the arrangement reflects legitimate product integration and efficiency or constitutes an agreement or abuse that restricts competition.

The comparative case law—especially Microsoft, IMS Health, Hilti, Google Android, Tetra Pak, and Commercial Solvents—helps explain the legal and economic issues associated with tying, foreclosure, interoperability, and control over important inputs. These cases are persuasive analytical references rather than Moroccan precedents.

The overall principle is that competition law should protect effective competition in legal information markets without penalising efficient subscription packages, legitimate copyright protection, or lower prices that benefit customers.