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at end, British Sugar refused to sell the requested amount of sugar for retail sale to Napier Brown offering only a slight proportion of the requested volume under its quota system. British Sugar (“BS”) also “refused to supply sugar to its customers unless the customer also accepted that BS itself (whether BS delivered the sugar itself or did so through third parties acting under contract for BS being irrelevant) supplied the service of delivery of the sugar. It was thus reserving for itself the separate but ancillary activity of delivering the sugar which could, under normal circumstances be undertaken by an individual contractor acting alone (e.g. acting as a real merchant delivering the sugar to a third party customer using his own transport facilities).”

The Commission further stated that it is “not aware of any objective necessity requiring BS to reserve such an activity to itself, and the fact that following BS's undertaking it has offered a choice to its clients between ex factory or delivered sugar, indicates that no such objective necessity exists.” Accordingly, an abuse of dominance was found.

The analysis was quite simplistic. The question of efficiencies had not even been raised but, importantly, the Commission had not given any attention to the question that there has not been any significant foreclosure effects: “The Commission did not regard it as necessary to assess whether the delivery of sugar was part of a wider transport market and whether the tying foreclosed any significant part of such market. The fact that British Sugar had “[r]eserv[ed] for itself the separate activity of delivering sugar” was sufficient as an anticompetitive effect.”

3.2 Hilti

The Commission's decision and the CFI judgment in Hilti stand as landmark decisions in EC law on tying. The facts involved the Lichtenstein-based company, dominant in the supply of various fastening instruments, including power actuated nail guns and the consumables such as cartridge strips and nails. By implementing a number of programmes, Hilti tied the supply of its cartridge strips to the supply of nails.

The complainants argued that Hilti's distribution system breached Article 82 by requiring the purchasers to purchase cartridges with Hilti's nails and preventing other competitors from selling their nails compatible with Hilti's guns. Hilti was also accused of reducing discounts to customers who bought compatible nails from other companies.

The Commission found that Hilti had breached Article 82. Again, as in British Sugar the foreclosure analysis has been ignored and the Commission limited its analysis to the statement that Hilti's policies “leave the consumer with no choice over the source of his nails and as such abusively exploit him.” The Commission therefore, “took the view that depriving the consumer of the choice of buying the tied products from separate suppliers was in itself abusive exploitation… In other words, as any tying by definition restricts consumer choice in the way described above, the Commission's position in Hilti strongly suggests that foreclosure does not have to be established and that, hence, tying is subject to a per se prohibition (with the possible exception of an objective justification).”

Hilti also provided important guidance on the scope of the objective justification exception. Hilti argued that its conduct aimed at ensuring safe