The concept of a commitment agreement refers to the practice of selling a product to a buyer with their consent, buying another product from the same seller. Link agreements can be considered anti-competitive practices when they limit trade or competition in a given market. The link can be sub-delegated into two distinct processes: horizontal and vertical linkage: (4) The competitor`s inability to match the link band cannot allow the quasi-monopoly to exploit its market power profitably if its competitors were able to react with their own packages151 The Commission and the Court of Justice debated at length the concept of “commercial exploitation” in Tetra Pak 11. Tetra Pak had argued that the fixing of the machines and cartons was not contrary to section 82, since the products were bound by commercial use. In support, Tetra Pak referred to its competitor Elopak, which stated that the combined sale of machinery and cardboard was a more efficient form of competition. Both the Commission101 and the Court102 found that the products were not bound by commercial use. The Court based its view on the fact that there are “independent manufacturers specializing in the manufacture of non-aseptic cartons for use in machines manufactured by other companies and not producing machinery themselves. About 12% of the non-aseptic cardboard sector was distributed in 1985 among three companies that manufactured their own cartons, usually under license and as machines, only as distributors. 103 The court then went on to rule obiter dictum: this agreement of engagement can pose competition problems because the alternative sellers of the second object – the linked product – may be isolated from the competition, because buyers are obliged to buy a product by the first seller, because buyers need the product over which the seller has market power (the first product). This is the only way for buyers to get the second item – by also buying the first product from the seller.
For more information on liaison agreements, see The Antitrust Attorney Blog. However, the Microsoft III case is fundamentally different from the one dealt with so far by the Supreme Court in at least two respects: where we should be between the rule of reason and the modified legitimacy itself, it is a more difficult judgment.