## Facts

- Tetra Pak supplied packaging systems for liquid and semi-liquid foods, including cartons and the machines that fill them, in two segments: aseptic (long-life) and non-aseptic (short-life).
- In aseptic cartons and machines, Tetra Pak held a quasi-monopoly (about 90–95% share) supported by patents, know-how, and a service network.
- In non-aseptic cartons and machines, Tetra Pak held a leading position (about 50–55% share) in markets closely linked to aseptic systems, with overlapping customers and related uses.
- The Commission found that Tetra Pak abused its position through (1) below-cost pricing of non-aseptic cartons, (2) tying the supply of machines to purchasing cartons from Tetra Pak, and (3) exclusivity and other restrictive clauses limiting customers’ ability to switch suppliers.
- The Commission imposed a substantial fine under then-Article 86 EEC (now Article 102 TFEU); the Court of First Instance largely upheld the decision and fine with minor adjustments.
- Tetra Pak appealed to the Court of Justice on points of law.

## Issues

1. Whether the relevant product markets were correctly defined as separate aseptic and non-aseptic markets, and whether dominance (or equivalent market power) was correctly found.
2. Whether Article 86 could apply to allegedly abusive conduct on a distinct but closely associated market where the firm was not shown to be dominant on that market.
3. Whether tying could be abusive under Article 86(2)(d) despite technical or commercial links between the tied products (machines and cartons).
4. Whether predatory pricing required proof that the undertaking had a realistic prospect of recouping losses incurred during below-cost pricing.

## Decision

- The Court of Justice dismissed the appeal and left in place the Commission decision as upheld by the Court of First Instance.
- The Court upheld separate market definitions for aseptic and non-aseptic systems based on competitive conditions and supply-and-demand structure.
- The Court affirmed that Article 86 could reach conduct on a distinct but associated market under special circumstances where the undertaking’s combined position was comparable to dominance across the linked markets.
- The Court upheld the finding that tying machines and cartons could be abusive even if the products were linked, absent objective justification.
- The Court upheld the finding of predatory pricing, confirming that pricing below average variable cost is abusive and that recoupment proof was not required.

## Legal Principles

- Relevant market definition may turn on competitive conditions and the structure of supply and demand, including technical requirements, uses, and price levels.
- Article 86/102 generally requires a link between dominance and the abusive conduct; conduct on a distinct market can fall within Article 86/102 only under special circumstances.
- Where an undertaking holds a quasi-monopoly on one market and a leading position on a closely associated market, its situation may be comparable to dominance on both, allowing Article 86/102 to apply without separate proof of dominance on the associated market.
- The list of abuses in Article 86(2)/102(2) is non-exhaustive; tying may be abusive even if consistent with commercial usage or involving products with a natural or technical link, unless objectively justified.
- Pricing below average variable cost by a dominant undertaking is abusive because it is explainable only by eliminating competitors; EU abuse analysis does not require proof of likely recoupment.

## Conclusion

The Court confirmed that a firm with overwhelming power in one market and a strong position in a closely linked market may be treated as effectively dominant across both for Article 86/102 purposes, and it upheld liability for tying and below-cost pricing without requiring proof of loss recoupment.


Tetra Pak Int’l SA v. Comm’n of the Eur. Cmtys., Case C-333/94 P, 1996 E.C.R. I-5951 (Ct. Just. Nov. 14, 1996)