Complaints against IBM dropped

On 30 June 2011 IBM submitted its Form 10-Q with the U.S. Securities and Exchange Commission (the “SEC Form”, p. 33), providing, inter alia, information relating to antitrust proceedings in Europe.  In particular, according to the SEC Form, T3 Technologies and Neon Enterprise Software, LLC (“Neon”) withdrew their complaints concerning alleged illegal tying of IBM’s mainframe hardware products to its dominant mainframe operating system, following both the conclusion of litigation on the same matter in the US – where action by T3 Technologies had been dismissed – and a settlement with IBM.

On 26 July 2010 the European Commission issued a press release stating that it commenced formal investigations against IBM for two alleged abuses of dominant position on the market for mainframe computers under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) (See Newsletter 4/2010 p.7 for background information).

The first investigation concerned alleged illegal tying of IBM’s mainframe hardware products to its dominant mainframe operating system. This investigation was prompted by various complaints, most notably by T3 Technologies (January 2009) and TurboHercules SAS (March 2010), which was later joined by Neon in July 2010.  The complaints contended that the tying would keep emulating technology out of the mainframe market, ultimately preventing consumers from using certain applications on non-IBM hardware.  While the SEC Form only states that T3 and Neon have withdrawn their complaints, it also appears that TurboHercules done so as well.

The second investigation, which the Commission started on its own initiative, focuses on IBM’s alleged discriminatory behavior aimed at foreclosing the market for maintenance services by restricting or delaying access to spare parts for which IBM is the only source.

The European Commission has not yet made a formal decision on whether it plans to close any of the investigations. At present, the investigations are still ongoing. [Gabriele Accardo]