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cumstances.

These developments finally led to the adoption of the rule of reason principle in Microsoft III which requires US courts to perform the balancing exercise of the efficiencies and the harm to competition created by tying.

The European system, on the contrary, chose to delineate the illegal and legal tying by reference to dominance and to regulate tying under the Article 82 regime. “Contrary to U.S. law, the issue of tying under EC law has been addressed largely in the context of the control of unilateral behavior of dominant firms, although tying may also fall within the scope of the control of restrictive agreements.” As a result, “in all tying cases, dominance in the market for the tying product has been a prerequisite for a finding of abusive tying.”

There are some important rules laid down by the European Court of Justice (“ECJ”) that offer additional explanation why the EC institutions consider tying through the different prism than the US courts.

The first is the rule laid down by the ECJ in Michelin which reads that “[a] finding that an undertaking has a dominant position is not in itself a recrimination but simply means that, irrespective of the reasons for which it has such a position, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market.” It follows that Article 82 prohibition may apply even when the conduct of the dominant undertaking is legal when viewed separately - a legal practice that brings about impairment to the competition on the market is potentially caught by the Michelin principle.

Second, is the wording of Article 82(d) itself which distinguishes tying of different products which “by their nature or according to commercial usage have no connection with the subject of such contracts”. The ‘separateness' of the tied products in question “is therefore generally assessed on the basis of “commercial usage.”” This paper will analyse below how the concept of ‘commercial usage' has been interpreted by the Commission and the European courts.

Third, is a general but important observation that EC competition law is yet another tool in the intricate system of EC law helping to achieve common market and any measure restricting this (such as foreclosure, barriers to entry, and measures restricting market access) are imMediately frowned upon and are hard to justify.

This is the general framework which applies to tying rules and makes it very hard to escape the prohibition of Article 82 once the mechanic tests (dominance, abuse, effect on intra-community trade etc) are satisfied.

2.2 Objective justification

Although the EC regime contains an almost automatic prohibition of tying it provides for the exception, although this exception is framed as a general exception to Article 82. “Article 82 has no equivalent to Article 81(3). This is partly explicable on the ground that classical monopolistic behaviour was felt to be inexcusable, and that therefore there was no need for any Article 81(3).” This view is changing, and this prompted the ECJ to develop “the concepts of objective justification and proportionality in order to provide some flexibility in what would otherwise be too draconian an application of Article 82.”

The ECJ referred to the ‘objective justification' possibility in a