Commission market tests IBM’s commitments in alleged abuse, closes parallel probe

On 20 September 2011 the European Commission published a draft of the summary commitments offered by IBM to address its concerns that IBM may have imposed unreasonable conditions for supplying competing mainframe maintenance service providers with certain spare parts and technical information (Machine Code Updates).  The Commission opened an investigation in July 2010 concerning whether IBM abused a dominant position in breach of Article 102 of the Treaty on the Functioning of the EU by imposing “unreasonable” supply conditions for such inputs (see Newsletter 4/2010 p.7 and Newsletter 4-5/2011 p.10 for background information).

In essence, IBM committed to ensuring the expeditious availability of certain spare parts and technical information to Third Party Maintainers (“TPMs”) in the EEA, on reasonable and non-discriminatory terms and conditions over a five-year period.  To facilitate dealings with TPMs, IBM created the position of an EU-wide TPM relationship manager tasked with assisting TPMS and coordinating all TPM-related issues within IBM.

Once the Commission reviews comments by interested parties, the Commission may make IBM’s commitments legally binding, without concluding whether there was an infringement of EU competition rules.

Separately, the Commission has decided to close the parallel investigation on the alleged tying of IBM’s mainframe hardware with its operating system due to the withdrawal of complaints made by rival software vendors T3, Turbo Hercules and Neon Enterprise Software. [Gabriele Accardo]