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contractual obligations: it is up to the user, and not the producer, to compare such advantages with those offered by open systems, and to make his choice freely.” The choice and initiative, according to the Commission shall rest with the consumer and not the manufacturer.

The ‘natural link' and ‘commercial usage' are very interesting arguments which, in principle, are “capable of evaluating competitor harm and efficiencies in much the same way as the consumer demand test does in the U.S.” These arguments have been repeated by Tetra Pak when the case proceeded to the CFI and later to the ECJ. Both Courts have rejected this argument, however. The CFI held that “consideration of commercial usage does not support the conclusion that the machinery for packaging a product is indivisible from the cartons. For a considerable time there have been independent manufacturers who specialize in the manufacture of non-aseptic cartons designed for use in machines manufactured by other concerns and who do not manufacture machinery themselves.”

Because of these reasons, “the tied sale of filling machines and cartons cannot be considered to be in accordance with commercial usage. Moreover and in any event, even if such a usage were shown to exist, it would not be sufficient to justify recourse to a system of tied sales by an undertaking in a dominant position. Even usage that is acceptable in a normal situation, on a competitive market, cannot be accepted in the case of a market where competition is already restricted.”

The ECJ followed the CFI's reasoning adding that “the list of abusive practices set out in the second paragraph of Article 86 of the Treaty is not exhaustive. Consequently, even where tied sales of two products are in accordance with commercial usage or there is a natural link between the two products in question, such sales may still constitute abuse within the meaning of Article 86 unless they are objectively justified.”

The important of Tetra Pak II is two-fold: “[f]irst, the Court seems to define commercial usage rather narrowly: […] as long as some untied sales occur in the relevant markets […], the criterion of commercial usage is not satisfied. Second, contrary to the express wording in article 82(d), the Court does not regard absence of commercial usage as a prerequisite for tying; rather, commercial usage seems to be treated similarly to “objective justifications” […] which may or may not take tying outside the scope of article 82.”

These concepts were tested again in the Microsoft saga, in which Microsoft was accused of tying of its Internet Explorer with Windows with Windows Media Player. Like Tetra Pak, Microsoft also brought arguments that “it is inappropriate to consider multimedia playback functionality to be a product separate from an operating system.” The argument was that “no client PC would be shipped without substantial multimedia functionality, including the capability to play audio and video content streamed over the Internet.”

The Commission disagreed with such an approach holding that “media players are products distinct from operating systems. This is inter alia demonstrated by the existence of stand-alone media player software that can be installed on PCs and by the existence of software vendors specialised in supplying media players products (such as Real Networks). The fact that customers expect to be able to play media