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Here is a question tabled by belgian MEP Saïd El Khadraoui (PSE) to the Commission on tied selling of the iPhone with a dedicated phone operator:

Parliamentary questions
29 November 2007
E-5911/07
WRITTEN QUESTION
by Saïd El Khadraoui (PSE) to the Commission

Subject: Sale of the new Apple iPhone

Apple intends to market its iPhone in a number of European countries this year, for example in France, Germany and the United Kingdom. However, anybody who buys an iPhone is required to take out a subscription with a particular operator. In France it will be Orange, and in Germany T-Mobile.

In Belgium, there is strict legislation concerning commercial practices, which completely prohibits tied sales. In other European countries, the law on this subject is less strict, depending on how European Parliament and Council Directive 2005/29/EC(1) of 11 May 2005 on Unfair Commercial Practices is interpreted.

1. By concluding exclusivity contracts with an operator in each Member State, is Apple infringing Directive 2005/29/EC?
2. Will the Commission ask Apple to explain its actions? If so, when?
3. Does the Commission intend to revise Directive 2005/29/EC? In doing so, will the Commission adopt a stricter attitude towards all forms of tied selling?

(1) OJ L 149, 11.6.2005, p. 22.

Here is the answer of the Commission (DOC format, sign the petition here to get rid of that format):

E-5911/07EN
Answer given by Ms Kuneva
on behalf of the Commission
(11.2.2008)

The compatibility of any exclusivity contracts between Apple iPhone and telecom operators with laws on unfair commercial practices and unfair competition laws is to be assessed by the national authorities and courts. The Commission is aware that legal proceedings are ongoing at national level. The Commission has no enforcement powers regarding these rules and cannot intervene or give legal interpretations in individual cases under Directive 2005/29/EC1.

Whether or not there is a violation of the EU antitrust rules laid down in Articles 81 and 82 of the EC Treaty depends on a range of factual, economic and legal issues. Apple is not dominant in the market for mobile handsets. Likewise, the operators that distribute the iPhone in the UK, France and Germany are unlikely to be dominant in their respective markets for the provision of mobile telephony services to end users.

The compatibility of the current Belgian legislation prohibiting joint offers with Directive 2005/29/EC on Unfair Commercial Practices will be assessed by the European Court of Justice following recent requests for preliminary rulings (C-261/07 VTB-VAB v.n.v. Total Belgium and C-299/07 Galatea BVBA v. Sanoma Magazines Belgium NV).

By 2011 the Commission shall submit a report on the application of Directive 2005/29/EC. The report shall be accompanied, if necessary, by a proposal to revise the Directive. An impact assessment would precede any proposal.

The Commission would like to draw the Honourable Member's attention to the fact that other EU consumer protection legislation could be relevant in this context. In particular, the Unfair Contract Terms Directive [2] aims at preventing significant imbalances in the rights and obligations of consumers, on the one hand and sellers and suppliers, on the other hand. This general requirement is supplemented by a list of terms which may be regarded as unfair. Terms which are found by a national court, tribunal or administrative body to be unfair under the Directive are not binding on consumers. The Directive also requires contract terms to be drafted in plain and intelligible language and states that ambiguities will be interpreted in favour of consumers.

So, for instance, a contract term which has the object or effect of limiting consumer's freedom to choose a telecom operator may, in some cases, be regarded by a national court as unfair and therefore not binding on consumers.

[1] Directive 2005/29/EC of the Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the Parliament and of the Council and Regulation (EC) No 2006/2004 of the Parliament and of the Council (‘Unfair Commercial Practices Directive’), OJ L 149, 11.6.2005.
[2] Council Directive 93/13/EC of 5 April 1993 on unfair terms in consumer contracts , OJ L 95, 21.4.1993.

Here is the question refered to the ECJ in the case Case C-261/07 VTB-VAB v.n.v. Total Belgium:

Reference for a preliminary ruling from the Rechtbank van
Koophandel te Antwerpen (Belgium) lodged on 1 June
2007 — VTB-VAB NV v Total Belgium NV
(Case C-261/07)
(2007/C 199/28)
Language of the case: Dutch
Referring court
Rechtbank van Koophandel te Antwerpen
Parties to the main proceedings
Applicant: VTB-VAB NV
Defendant: Total Belgium NV

Question referred

Does Directive 2005/29 (1) of the European Parliament and of the Council concerning unfair commercial practices preclude a national provision such as Article 54 of the Belgian Law of 14 July 1991 on commercial practices, consumer information and consumer protection, which, subject to the exhaustive list of exceptions contained within that Law, prohibits any collateral offer by a seller to a consumer, including an offer in which goods which the consumer has to buy are tied to a free service, the acquisition of which is linked to the purchase of the goods, notwithstanding the circumstances of individual cases, in particular notwithstanding the possible influence of the actual offer on the average consumer, or whether, in the actual circumstances, that offer may be regarded as contravening the professional duty of care and genuine commercial custom?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

Here is the other one on C-299/07 Galatea BVBA v. Sanoma Magazines Belgium NV:

Reference for a preliminary ruling from the Rechtbank van
koophandel te Antwerpen (Belgium) lodged on 27 June
2007 — Galatea BVBA v Sanoma Magazines Belgium NV
(Case C-299/07)
(2007/C 199/36)
Language of the case: Dutch
Referring court
Rechtbank van koophandel te Antwerpen

Parties to the main proceedings
Applicant: Galatea BVBA
Defendant: Sanoma Magazines Belgium NV
Question referred

Do Article 49 of the EC Treaty concerning the freedom to provide services and Directive 2005/29/EC (1) of the European Parliament and of the Council concerning unfair commercial practices preclude national legislation, such as Article 54 of the Belgian Law of 14 July 1991 on trade practices and consumer information and protection, which — except in the cases listed exhaustively in that law — prohibits any linked offer by a vendor to a consumer whereby the acquisition, whether or not free of charge, of products, services, advantages or vouchers with which they can be obtained is linked to the acquisition of other, even identical, products or services, and this regardless of the circumstances of the case, and especially regardless of the influence which the specific offer may have on the average consumer and regardless of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 may 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

The Belgian law in question is Art54 of the law of 14 July 1991:

Combined offers

Combined offers are defined in Article 54. A combined offer means that some advantage is granted when buying a good or a service.
As a general rule, these offers are prohibited. Only combined offers that are limitatively enumerated in the Act are authorised.

Examples of authorised combined offers :

* goods that form a whole (e.g. a frame and the eyeglasses for spectacles);
* free package when buying the main product (e.g. a drinking glass);
* free promotional item when buying the main product;
* free tickets to take part in an authorised tombola when buying the main product;
* customer cards (e.g. buy 10 products, get 10% off the purchase of the 11th one);
* discount stamps (since they can almost be regarded as money, the issuing of such stamps is subject to stringent regulations and issuers must guarantee repayment to the holders of discount stamps).

Now, there are some more documentation about the legal interpretation here on AEL website on pre-installed Microsoft Windows OEMs.