On Sep. 20, 2011, the European Commission (EC) announced that IBM had made proposals to the EC intended to settle an investigation into alleged conduct by the company affecting the market for mainframe computer maintenance services. The proposals aim to resolve concerns that IBM may have, in breach of an alleged dominant position, imposed unreasonable conditions on competing mainframe maintenance service providers when supplying them with inputs. The inputs are spare parts and technical information concerning IBM’s mainframe hardware and software products. Under the proposals, other service providers will be able to access the inputs on guaranteed reasonable and non-discriminatory terms and conditions over a period of five years.
The case shows once again the willingness of the EC to take on cases in the IT sector concerning complex issues of access to intellectual property and interface information owned by an allegedly dominant company. It is clear that the EC will not shy away from such cases in the sector, as well as cases involving tying practices, despite the bruising battles it has had in the past with some of the companies investigated. It is also clear that it will be flexible in how it settles these cases. In July 2009, Microsoft made informal proposals to the EC in relation to disclosures of interoperability information that would improve interoperability between third party products and several Microsoft products. Those proposals cannot be enforced by the EC, but can be privately enforced. The current IBM proposals would, if ultimately accepted, be enforceable by the EC.