Tying under EC Competition Law: The Tetra Pak II Case

Abstract: This paper discusses tying, a practice which, when used by large firms, has in the past been treated as anti-competitive and therefore undesirable. In the European Community, tying has been assessed in only a few court cases. The so called Tetra Pak II case was one such case. There, the court held that the defendant, Tetra Pak, was using tying in order to obtain market power by excluding its competitors. This judgment was controversial already back then and even more so today, above all in light of advancements made in economic theory on tying. These advancements have resulted in a call for a more economic, effect based approach to tying cases, rather than a form based approach. This, paired with the fact that tying has recently been tried in court, in the Microsoft case, have prompted me to go back to review the Tetra Pak II case, applying the proposed effect based approach. I have found several difficulties in doing so, but also, more interestingly, I have found that using an effect based approach in the Tetra Pak II case could, and perhaps even should, have resulted in a different outcome of the case.