In a decision of 10 January 2012, the French Competition Authority rejected Hewlett-Packard's request for interim measures against Oracle. This decision follows a complaint lodged by the Hewlett-Packard Company and Hewlett-Packard France ("HP") alleging that the Oracle Corporation and Oracle France ("Oracle") had committed various abuses of Article 102 TFEU and its French equivalent in the market for relational database management systems ("RDBMS") aimed at driving HP from the market for the high-end corporate servers.

HP is one of the main hardware suppliers of all types of corporate servers, while Oracle is one of the main suppliers, with IBM and Microsoft, of RDBMS software which is used as part of the "technology stack" on certain types of corporate servers. Following its acquisition of Sun Microsystems in January 2010, Oracle also became active on the markets for other products in the technology stack, including the server hardware, server operating system, middleware and application software markets.

At this stage of its investigation, the French Competition Authority identified two relevant markets, without excluding the possibility that these markets may be further divided: (i) an EEA-wide market for high-end corporate servers and (ii) a worldwide market for RDBMS. The French Competition Authority considered that Oracle may hold a dominant position on the market for RDBMS, in view of its estimated market share (almost 50% in 2010), the important gap between Oracle's market share and that of its next competitor, IBM (more than twice as high), as well as the existence of high barriers to entry and of a largely captive installed base of users.

In its complaint, HP accused Oracle of the following practices:

  • A refusal to supply in so far as Oracle announced in March 2011 that it would refuse to develop future versions of its RDBMS that would support Intel's Itanium processor, which Hewlett-Packard uses almost exclusively to manufacture its range of HP Integrity servers; and
  • Discriminatory pricing for Oracle's RDBMS licence (current version) to the detriment of the new generation of HP Integrity servers.

According to HP, these two practices aimed at pushing customers that currently combine HP Integrity server hardware and Oracle's RDBMS to make a choice between these two products. In light of the fact that changing RDBMS is much more expensive and risky for companies than changing servers, HP considered that, faced with the impossibility of migrating to a future version of Oracle's RDBMS, users of HP Integrity servers would choose to change their hardware platform rather than the RDBMS. In effect, HP believed that Oracle's conduct would cause customers to migrate to the new version of Oracle's RDBMS and replace their Hewlett-Packard hardware with Oracle's SPARC servers or IBM's Power servers.

With respect to the refusal to supply allegation, the French Competition Authority considered that Oracle's refusal to develop future versions of its RDBMS that support HP Integrity servers could constitute an abuse of a dominant position that may, inter alia, lead to the creation of a duopoly between Oracle and IBM, which are fully integrated at the various stages of the technology stack.

Turning to the discriminatory pricing allegation, the French Competition Authority considered that a practice consisting of charging different licence fees on the basis of the range of servers used could be discriminatory and, therefore, could constitute an abusive practice, if this practice were confirmed by the investigation on the merits.

However, the French Competition Authority found that the conditions for granting interim measures, namely the existence of a serious and immediate threat of damage to the economy or the complainant, were not met in the case at hand. While rejecting HP's request for interim measures, the French Competition Authority decided to continue the investigation of the complaint on the merits.

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