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
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
Discriminatory pricing for Oracle's RDBMS licence (current
version) to the detriment of the new generation of HP Integrity
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
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