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ty, operability and reliability of the products. In particular, Hilti relied on the facts that operators of nail guns must be properly trained especially with regard to safety procedures; that substandard cartridges can give rise to mis- or multi-firing or deposit excessive carbon threatening to override the safety mechanism of a nail gun; substandard nails can give rise to ricocheting, dangerous to operators; only the manufacturer of fastening device can ensure the compatibility, safety and reliability of the whole system; that independent consumable producers are unable to ensure the safety of the system and that the complainants nails were indeed substandard. These certainly seemed like valid arguments raising important issues of health and safety standards.

The Commission, however, dismissed these arguments claiming that Hilti failed to take any legal steps necessary to stop the alleged violations of safety standards, that adequate safety controls and standards already exist in the EEC countries and that Hilti was not required to take any additional steps to ensure compliance which has already been ensured by the national legislation.

Another striking feature of the Commission's approach has been the narrow definition of the relevant market so “that a finding of dominance was inevitable.” Also, the Commission implied that Article 82 would still apply when the firm was dominant in the secondary market and this did not require market power in the main product market. Both CFI and the ECJ concurred with the Commission.

3.3 Tetra Pak II

In Tetra Pak II the Commission and the ECJ clarified the meaning and scope of the ‘commercial usage' term in Article 82. Tetra Pak, the world leader in the production of carton packages for liquid and semi-liquid products had clauses requiring the purchasers to purchase only Tetra Pak carton for use in its filling machines. Tetra Pak was dominant in the aseptic packaging market.

Tetra Pak argued that there was a natural link between cartons and filling machines and that tied sales of the two were normal commercial usage therefore taking Tetra Pak's policies outside of Article 82(d) prohibition.

In particular, Tetra Pak argued that “the high technology of its machines demands the use of cartons specifically designed for them, which in turn requires a thorough knowledge of the machines and their peculiarities, of the products to be packaged, and of the possible interactions between those machines and products. The obligation to obtain supplies exclusively from Tetra Pak, by means of the link it establishes between the equipment and type of packaging, leads to synergistic effects at the level of research and development and after-sales service. There is therefore a ‘natural link' between the machine and the type of packaging it uses...”

The Commission predictably rejected these arguments stating that “[i]t is [...] very difficult to conceive of the existence between products having totally distinct physical characteristics and resulting from completely different production processes of ‘natural links'” which would exempt the practice from the reach of Article 82.

It further stated that if resulting ‘synergies' “are of benefit solely to the producer, and if real advantages exist for the user in an integrated supply system, they will be apparent without it being necessary to make recourse to