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content on their computer does not imply that the operating system should include the media player.”

4. Overview and problems facing EC regime

The EC regulation of tying is based on Article 82 abuse of dominance rules. As discussed above, the analysis of whether tying is caught by Article 82 is mechanic with a number of tests to be satisfied. Once these tests (market power in the relevant market and abuse) are satisfied there is virtually no way out and tying will constitute an illegal activity.

Unlike its US counterpart, the EC system omit from its analysis a number of important considerations. In particular, the British Sugar and Hilti show that EC system does not require demonstrating any foreclosure elements and that limiting consumer choice over the selection of products is enough to trigger liability under Article 82.

Although the EC system contains a general provision that abuse may be ‘objectively justified' such an exception is very limited: “[i]n principle, dominant firms accused of abusive tying may raise the defense of objective justifications. In practice, however, there is so far no example of a successful defense.” There has been a number of valid attempts to justify tying under considerations of safety and reliability (Hilti), ‘natural link' and ‘commercial usage' (Tetra Pak II) and inseparability of compared products (Microsoft) but these attempts have failed to constitute an objective justification.

There have been few signs that EC institutions are ready to listen to the efficiency and economic justification arguments in defence of tying. Evidently, “in Europe it has taken longer for new developments in economic theory to affect competition policy.” The Commission's approach still reflects “pre-Chicago thinking in which some courts presumed that a harm to competitors necessarily resulted in a harm to competition and consumers.”

Defective as it may be, such an approach is deeply rooted in the system of EC law. A number of important factors and policy directions constrain the ability of the EC institutions to engage in a full-blown economic assessment of tying.

First, is the fact that tying is regulated under the abuse of dominance provisions of Article 82. The US regime does attach the issue of tying to the rules on abuse of dominance and this allows a) to pursue genuine illegal tying practices at all levels and b) much more space for the economic analysis of the efficiencies and synergies. The EC Commission, on the other hand, has to follow the strict tests of Article 82.

Second, is the Michelin principle imposing ‘special responsibility' on the dominant firms “not to allow its conduct to impair genuine undistorted competition on the common market.” Such principle“facilitates the finding of an abuse; in particular it seems to make it easier to reach the conclusion that behavior that is efficient, if carried out by a firm with market power, is harmful to competition if undertaken by a dominant firm without the competition authorities assessing in detail whether the behavior of the dominant firm might be efficiency enhancing.”

Third, is the fact that there are not as many tying cases coming to the Commission's attention as to the attention of the US courts. “Here, the small number of EC tying cases makes it very difficult to determine whether the threshold of an objective justification i