The IBM mainframe maintenance case (Case AT.39692) was an antitrust investigation by the European Commission into whether IBM had imposed unreasonable conditions on independent companies that maintain IBM mainframes. On 14 December 2011 the Commission made IBM’s commitments legally binding. IBM committed to make spare parts and technical information swiftly available to independent mainframe maintainers on commercially reasonable and non-discriminatory terms.[3] A separate investigation, opened on the same day in 2010, concerned the alleged tying of IBM’s mainframe hardware to its mainframe operating system. It was closed in 2011 after the complaints were withdrawn.[2]
Background
The Commission described mainframes as powerful computers used by large companies and government institutions to store and process critical business information. It estimated that in 2009 about EUR 8.5 billion worldwide and EUR 3 billion in the European Economic Area (EEA) were spent on new mainframe hardware and operating systems.[1] Because mainframes run mission-critical processes, fast maintenance is essential. IBM and third-party maintainers both offered maintenance for IBM mainframes, and the independent maintainers needed rapid access to spare parts and technical information to compete.[3]
The dispute
On 26 July 2010 the Commission opened formal proceedings against IBM in two separate cases under Article 102 of the Treaty on the Functioning of the European Union (TFEU).[1]
- Tying. The first case followed complaints by emulator software vendors T3 and Turbo Hercules. It concerned IBM’s alleged tying of its mainframe hardware to its mainframe operating system. The complainants argued that the tying shut out emulation technology that could let users run critical applications on non-IBM hardware.[1]
- Maintenance. The second case was opened on the Commission’s own initiative. It concerned IBM’s alleged discrimination against competing suppliers of mainframe maintenance services, in particular “by restricting or delaying access to spare parts for which IBM is the only source”.[1]
The Commission stated that opening proceedings did not mean it had proof of an infringement.[1] In August 2011 it told IBM of its concern that IBM might have abused a dominant position by imposing “unreasonable” supply conditions on competing maintenance providers for certain inputs.[2]
Decision or outcome
On 20 September 2011 the Commission market-tested IBM’s proposed commitments. IBM offered to ensure the expeditious availability of certain spare parts and technical information to third-party maintainers in the EEA, on reasonable and non-discriminatory terms, over a period of five years.[2] On the same day the Commission closed the tying case after an in-depth investigation. It had also received a related complaint from Neon Enterprise Software, and all three complaints were withdrawn.[2]
On 14 December 2011 the Commission adopted a decision under Article 9 of Regulation 1/2003 making the commitments, as revised after the market test, legally binding. The decision does not conclude whether there was an infringement. If IBM breached the commitments, the Commission could fine it up to 10% of its total turnover without proving a violation of EU competition rules.[3]
Significance for software licensing and SAM practice
The maintenance case concerned hardware inputs rather than a software licence, but it is one of the earliest Commission cases on a vendor’s control of its own aftermarket. Independent maintainers cannot compete without parts and technical information that only the original vendor holds, and the remedy was a duty to supply them on reasonable and non-discriminatory terms.[3] The 2025 to 2026 SAP ERP support case addressed the software side of the same question, namely the contract terms that tie customers to the vendor’s own support.
The tying case raised a licensing question, namely whether a dominant mainframe operating system may be licensed only for the vendor’s own hardware. The Commission closed it without a decision on the merits once the complaints were withdrawn.[2] Questions about IBM mainframe software and emulation have since reached the courts in other forms, for example IBM v. LzLabs.
Lessons learned
- Aftermarket access can be enforced. The Commission treated restricted or delayed access to spare parts for which IBM was the only source as a possible abuse, and the outcome was a duty to supply on reasonable and non-discriminatory terms.[1][3] Customers weighing third-party maintenance should check what parts and information the provider can obtain.
- Commitments expire. IBM’s commitments were offered for a period of five years.[2] Before relying on any commitments decision, confirm that it is still in force.
- Withdrawn complaints end cases. The tying case was closed after T3, Turbo Hercules and Neon Enterprise Software withdrew their complaints, so there is no Commission ruling on whether IBM’s hardware and operating system tie was lawful.[2]