In 1987 the European Commission fined the Swiss firm, Hilti AG, in respect of certain practices relating to the sale of nail guns and nails for use therein. The Commission found that Hilti had a dominant position in the market for nails and cartridges for use in Hilti nail guns and had abused its position, thereby contravening Article 86 of the Treaty of Rome. The objectionable practices essentially involved tying the sale of the guns to the sale of nails. The Commission's decision was upheld by the Court of First Instance. A subsequent appeal was filed to the European Court of Justice in the case of Hilti AG v. The Commission. The arguments centered largely on a definition of what was the relevant product market for determining whether a dominant position existed. Hilti argued that the relevant market was not just nail guns and the nails therefor, but a wide range of means for affixing one article to another. The court held that the lower tribunals' decisions had been correct in characterization of a narrowly defined market. In particular, the lower tribunals had properly considered the question of interchangeability of Hilti nails with other fastening systems and their analysis was correct.
In response to a plea from Hilti that certain factual matters should be investigated further, the European Court of Justice declined to do so on the ground that, since creation of the European Court of First Instance, the role of the Court of Justice is now to consider appeals on legal issues only and that in general it would accept findings of fact as determined by the Court of First Instance.
Problems with "tie-in" provisions have recently also been highlighted by the decision of the English Court of Appeal in the case of Chiron Corporation v. Organon Teknika. In that case a provision that has existed in British patent statutes since 1907 was employed for the first time to hold a British patent unenforceable because of the existence of a license agreement containing provisions tying the grant of the license to the purchase of unpatented materials.
June 1994 Index