# Official Journal C 91/2010

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2010.091.eng |
| --- | --- |
| Official Journal
  of the European Union | C 91 |
| | |
| English edition | Information and Notices | Volume 539 April 2010 |

ISSN 1725-2423

doi:10.3000/17252423.C_2010.091.eng

Official Journal

of the European Union

C 91

English edition

Information and Notices

Volume 539 April 2010

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2010/C 091/01 | Euro exchange rates | 1 |
| 2010/C 091/02 | Euro exchange rates | 2 |
| 2010/C 091/03 | Opinion of the Advisory Committee on Mergers given at its meeting of 11 January 2010 regarding a preliminary draft decision relating to Case COMP/M.5529 — Oracle/Sun Microsystems — Rapporteur: Estonia | 3 |
| 2010/C 091/04 | Final Report in the Oracle/Sun Microsystems Case COMP/M.5529 | 5 |
| 2010/C 091/05 | Summary of Commission Decision of 21 January 2010 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5529 — Oracle/Sun Microsystems) (notified under document C(2010) 142 final)
   (
  1
  ) | 7 |
| | NOTICES FROM MEMBER STATES |
| 2010/C 091/06 | Summary information communicated by Member States on State aid granted in conformity with Commission Regulation (EC) No 736/2008 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of fisheries products (
  1
  ) | 14 |
| 2010/C 091/07 | Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community — Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations (
  1
  ) | 15 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2010/C 091/01

Euro exchange rates

1

2010/C 091/02

Euro exchange rates

2

2010/C 091/03

Opinion of the Advisory Committee on Mergers given at its meeting of 11 January 2010 regarding a preliminary draft decision relating to Case COMP/M.5529 — Oracle/Sun Microsystems — Rapporteur: Estonia

3

2010/C 091/04

Final Report in the Oracle/Sun Microsystems Case COMP/M.5529

5

2010/C 091/05

Summary of Commission Decision of 21 January 2010 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5529 — Oracle/Sun Microsystems) (notified under document C(2010) 142 final)
   (
  1
  )

(notified under document C(2010) 142 final)

1

7

NOTICES FROM MEMBER STATES

2010/C 091/06

Summary information communicated by Member States on State aid granted in conformity with Commission Regulation (EC) No 736/2008 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of fisheries products (
  1
  )

1

14

2010/C 091/07

Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community — Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations (
  1
  )

1

15

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

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(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 9.4.2010 | EN | Official Journal of the European Union | C 91/1 |
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9.4.2010

EN

Official Journal of the European Union

C 91/1

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Euro exchange rates (1)

1 April 2010

2010/C 91/01

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,3468 |
| JPY | Japanese yen | 126,28 |
| DKK | Danish krone | 7,4448 |
| GBP | Pound sterling | 0,88485 |
| SEK | Swedish krona | 9,7288 |
| CHF | Swiss franc | 1,4179 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 8,0168 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 25,385 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 264,78 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,7089 |
| PLN | Polish zloty | 3,8458 |
| RON | Romanian leu | 4,1081 |
| TRY | Turkish lira | 2,0481 |
| AUD | Australian dollar | 1,4685 |
| CAD | Canadian dollar | 1,3622 |
| HKD | Hong Kong dollar | 10,4604 |
| NZD | New Zealand dollar | 1,9129 |
| SGD | Singapore dollar | 1,8826 |
| KRW | South Korean won | 1 517,04 |
| ZAR | South African rand | 9,8023 |
| CNY | Chinese yuan renminbi | 9,1937 |
| HRK | Croatian kuna | 7,2638 |
| IDR | Indonesian rupiah | 12 249,89 |
| MYR | Malaysian ringgit | 4,3885 |
| PHP | Philippine peso | 60,838 |
| RUB | Russian rouble | 39,5985 |
| THB | Thai baht | 43,609 |
| BRL | Brazilian real | 2,3953 |
| MXN | Mexican peso | 16,6195 |
| INR | Indian rupee | 60,202 |

Currency

Exchange rate

USD

US dollar

1,3468

JPY

Japanese yen

126,28

DKK

Danish krone

7,4448

GBP

Pound sterling

0,88485

SEK

Swedish krona

9,7288

CHF

Swiss franc

1,4179

ISK

Iceland króna

NOK

Norwegian krone

8,0168

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

25,385

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

264,78

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,7089

PLN

Polish zloty

3,8458

RON

Romanian leu

4,1081

TRY

Turkish lira

2,0481

AUD

Australian dollar

1,4685

CAD

Canadian dollar

1,3622

HKD

Hong Kong dollar

10,4604

NZD

New Zealand dollar

1,9129

SGD

Singapore dollar

1,8826

KRW

South Korean won

1 517,04

ZAR

South African rand

9,8023

CNY

Chinese yuan renminbi

9,1937

HRK

Croatian kuna

7,2638

IDR

Indonesian rupiah

12 249,89

MYR

Malaysian ringgit

4,3885

PHP

Philippine peso

60,838

RUB

Russian rouble

39,5985

THB

Thai baht

43,609

BRL

Brazilian real

2,3953

MXN

Mexican peso

16,6195

INR

Indian rupee

60,202

---

(1)  Source: reference exchange rate published by the ECB.

---

| 9.4.2010 | EN | Official Journal of the European Union | C 91/2 |
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9.4.2010

EN

Official Journal of the European Union

C 91/2

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Euro exchange rates (1)

8 April 2010

2010/C 91/02

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,3296 |
| JPY | Japanese yen | 123,76 |
| DKK | Danish krone | 7,4438 |
| GBP | Pound sterling | 0,87500 |
| SEK | Swedish krona | 9,6785 |
| CHF | Swiss franc | 1,4324 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 7,9505 |
| BGN | Bulgarian lev | 1,9559 |
| CZK | Czech koruna | 25,190 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 268,90 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,7068 |
| PLN | Polish zloty | 3,8498 |
| RON | Romanian leu | 4,1185 |
| TRY | Turkish lira | 2,0008 |
| AUD | Australian dollar | 1,4394 |
| CAD | Canadian dollar | 1,3407 |
| HKD | Hong Kong dollar | 10,3181 |
| NZD | New Zealand dollar | 1,8935 |
| SGD | Singapore dollar | 1,8561 |
| KRW | South Korean won | 1 493,53 |
| ZAR | South African rand | 9,7625 |
| CNY | Chinese yuan renminbi | 9,0739 |
| HRK | Croatian kuna | 7,2650 |
| IDR | Indonesian rupiah | 12 060,75 |
| MYR | Malaysian ringgit | 4,2580 |
| PHP | Philippine peso | 59,764 |
| RUB | Russian rouble | 39,1742 |
| THB | Thai baht | 42,916 |
| BRL | Brazilian real | 2,3752 |
| MXN | Mexican peso | 16,3839 |
| INR | Indian rupee | 59,1295 |

Currency

Exchange rate

USD

US dollar

1,3296

JPY

Japanese yen

123,76

DKK

Danish krone

7,4438

GBP

Pound sterling

0,87500

SEK

Swedish krona

9,6785

CHF

Swiss franc

1,4324

ISK

Iceland króna

NOK

Norwegian krone

7,9505

BGN

Bulgarian lev

1,9559

CZK

Czech koruna

25,190

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

268,90

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,7068

PLN

Polish zloty

3,8498

RON

Romanian leu

4,1185

TRY

Turkish lira

2,0008

AUD

Australian dollar

1,4394

CAD

Canadian dollar

1,3407

HKD

Hong Kong dollar

10,3181

NZD

New Zealand dollar

1,8935

SGD

Singapore dollar

1,8561

KRW

South Korean won

1 493,53

ZAR

South African rand

9,7625

CNY

Chinese yuan renminbi

9,0739

HRK

Croatian kuna

7,2650

IDR

Indonesian rupiah

12 060,75

MYR

Malaysian ringgit

4,2580

PHP

Philippine peso

59,764

RUB

Russian rouble

39,1742

THB

Thai baht

42,916

BRL

Brazilian real

2,3752

MXN

Mexican peso

16,3839

INR

Indian rupee

59,1295

---

(1)  Source: reference exchange rate published by the ECB.

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| 9.4.2010 | EN | Official Journal of the European Union | C 91/3 |
| --- | --- | --- | --- |

9.4.2010

EN

Official Journal of the European Union

C 91/3

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Opinion of the Advisory Committee on Mergers given at its meeting of 11 January 2010 regarding a preliminary draft decision relating to Case COMP/M.5529 — Oracle/Sun Microsystems

Rapporteur: Estonia

2010/C 91/03

| 1. | The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. |
| --- | --- |

1.

The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

| 2. | The Advisory Committee agrees with the Commission that the notified concentration has a Community dimension pursuant to Article 1(2) of the Merger Regulation. |
| --- | --- |

2.

The Advisory Committee agrees with the Commission that the notified concentration has a Community dimension pursuant to Article 1(2) of the Merger Regulation.

| 3. | The Advisory Committee agrees with the Commission that for the purposes of assessing the notified concentration the relevant product markets concerned are:






  (a) | databases, comprising all relational database management systems; |
| --- | --- | --- |

3.

The Advisory Committee agrees with the Commission that for the purposes of assessing the notified concentration the relevant product markets concerned are:

(a)

databases, comprising all relational database management systems;

| (b) | middleware, with a possible sub-segmentation, although the exact product market definition can be left open; |
| --- | --- |

(b)

middleware, with a possible sub-segmentation, although the exact product market definition can be left open;

| (c) | licensing of Java IP rights connected to the Java development environment, although the exact product market definition can be left open. |
| --- | --- |

(c)

licensing of Java IP rights connected to the Java development environment, although the exact product market definition can be left open.

| 4. | The Advisory Committee agrees with the Commission that the scope of the relevant geographic market is:






  (a) | worldwide for databases; |
| --- | --- | --- |

4.

The Advisory Committee agrees with the Commission that the scope of the relevant geographic market is:

(a)

worldwide for databases;

| (b) | worldwide for middleware and the possible sub-segments; |
| --- | --- |

(b)

worldwide for middleware and the possible sub-segments;

| (c) | worldwide for the licensing of Java IP rights connected to the Java development environment. |
| --- | --- |

(c)

worldwide for the licensing of Java IP rights connected to the Java development environment.

| 5. | The Advisory Committee agrees with the Commission that for the purposes of assessing the notified concentration the ‘IT stack’ or ‘technology stack’ encompasses the following layers:






  (i) | storage solutions; |
| --- | --- | --- |

5.

The Advisory Committee agrees with the Commission that for the purposes of assessing the notified concentration the ‘IT stack’ or ‘technology stack’ encompasses the following layers:

(i)

storage solutions;

| (ii) | servers; |
| --- | --- |

(ii)

servers;

| (iii) | operating systems; |
| --- | --- |

(iii)

operating systems;

| (iv) | databases; |
| --- | --- |

(iv)

databases;

| (v) | middleware; |
| --- | --- |

(v)

middleware;

| (vi) | Enterprise Application Software (EAS). |
| --- | --- |

(vi)

Enterprise Application Software (EAS).

| 6. | The Advisory Committee agrees with the Commission's assessment that the notified concentration will not lead to a significant impediment to effective competition on the worldwide market for databases. A minority abstain. |
| --- | --- |

6.

The Advisory Committee agrees with the Commission's assessment that the notified concentration will not lead to a significant impediment to effective competition on the worldwide market for databases. A minority abstain.

| 7. | The Advisory Committee agrees with the Commission's assessment that the notified concentration will not lead to a significant impediment to effective competition on the worldwide market for middleware or any of its possible sub-segments. |
| --- | --- |

7.

The Advisory Committee agrees with the Commission's assessment that the notified concentration will not lead to a significant impediment to effective competition on the worldwide market for middleware or any of its possible sub-segments.

| 8. | The Advisory Committee agrees with the Commission's assessment that since Oracle will have neither the ability nor the incentive to foreclose its downstream competitors in middleware or EAS, the notified concentration will not lead to a significant impediment to effective competition stemming from Oracle's ownership of the IP rights connected to the Java development environment. |
| --- | --- |

8.

The Advisory Committee agrees with the Commission's assessment that since Oracle will have neither the ability nor the incentive to foreclose its downstream competitors in middleware or EAS, the notified concentration will not lead to a significant impediment to effective competition stemming from Oracle's ownership of the IP rights connected to the Java development environment.

| 9. | The Advisory Committee agrees with the Commission's assessment that the notified concentration will not lead to a significant impediment to effective competition stemming from the merged entity's presence in the IT stack. |
| --- | --- |

9.

The Advisory Committee agrees with the Commission's assessment that the notified concentration will not lead to a significant impediment to effective competition stemming from the merged entity's presence in the IT stack.

| 10. | The Advisory Committee agrees with the Commission that the notified concentration should be declared compatible with the common market and the functioning of the EEA Agreement, in accordance with Articles 2(2) and 8(1) of the Merger Regulation and Article 57 of the EEA Agreement. A minority abstain. |
| --- | --- |

10.

The Advisory Committee agrees with the Commission that the notified concentration should be declared compatible with the common market and the functioning of the EEA Agreement, in accordance with Articles 2(2) and 8(1) of the Merger Regulation and Article 57 of the EEA Agreement. A minority abstain.

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| 9.4.2010 | EN | Official Journal of the European Union | C 91/5 |
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9.4.2010

EN

Official Journal of the European Union

C 91/5

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Final Report (1) in the Oracle/Sun Microsystems Case COMP/M.5529

2010/C 91/04

The draft Decision gives rise to the following observations:

Introduction

On 30 July 2009, the Commission received a notification pursuant to Article 4 of the Merger Regulation (2), by which Oracle Corporation, USA, (‘Oracle’) notified its proposed acquisition of the control of Sun Microsystems Inc., USA, (‘Sun’) by way of purchase of shares (Article 3(1)(b) of the Merger Regulation).

The Procedure in Phase II

On 3 September 2009, the Commission initiated proceedings and opened a Phase II investigation pursuant to Article 6(1)(c) of the Merger Regulation. It took the view that the concentration raised serious doubts as to its compatibility with the common market. Subsequently, on 9 November 2009, the Commission issued a Statement of Objections (‘SO’). It set out its preliminary view that the acquisition of MySQL (owned by Sun), the largest open source database, by Oracle, the largest and strongest proprietary database vendor, would significantly impede effective competition on the worldwide market for databases.

Following the SO and prior to the Oral Hearing, the Commission sent two Letters of Facts to Oracle, the first was sent on 30 November 2009 and the second on 8 December 2009 with deadlines for comments of 7 and 11 December 2009 respectively. Oracle submitted written observations on the SO, after having been granted an extension of the time limit, and on the first Letter of Facts on 3 and 8 December 2009 respectively but did not comment on the second.

Ten third parties requested admission to the merger procedure. Of these, six were admitted, attended and gave presentations at the Oral Hearing, three were admitted but did not attend the Oral Hearing and one party was rejected. The rejected party was not a competitor, customer or supplier but an investment firm with shareholdings in software vendors. It has no direct knowledge of the market under examination in the proceedings.

The Oral Hearing

Oracle exercised its right to be heard in an Oral Hearing, which took place on 10 December 2009 (full day) and the morning of 11 December 2009. Sun and six third parties also participated in the Oral Hearing. It was well attended and a number of senior members of DG Competition and of the Cabinet of Commissioner Kroes were present.

In addition to the admitted third parties, a number of employees of Oracle's customers gave presentations during the Oral Hearing. The customers themselves did not apply to be admitted as third parties and did therefore not demonstrate a sufficient interest. As such, these employees spoke in their personal capacity and their interventions could only form part of the presentations from the parties to the concentration.

The Oral Hearing was instructive and involved lively debate in which the parties to the concentration, the third parties, the Commission services and the Member States engaged.

The draft Decision

The draft Decision finds that, on the balance of probabilities, the proposed transaction will not lead to a significant impediment to effective competition on any relevant market. This finding takes account of the specific characteristics of MySQL as an open source product, publicly announced pledges by Oracle concerning the maintenance of MySQL as a competitive force in the database market after Oracle's acquisition of Sun and the extent to which other open source databases might develop to exercise a constraint on Oracle, along with all the other elements in the Commission's file. Since the Commission has arrived at the conclusion that the merger will not raise competition concerns and no formal remedies within the meaning of the Remedies Notice (3) have been submitted in this case there can be no requirement for the Commission to perform a market test.

In view thereof, and taking into account the observations set out above, I consider that the parties' rights to be heard in this case have been respected.

Brussels, 12 January 2010.

Michael ALBERS

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(1)  Pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21.

1

(2)  Council Regulation (EC) No 139/2004 of 20 January 2004, OJ L 24, 29.1.2004, p. 1.

2

(3)  Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004, OJ C 267, 22.10.2008, p. 1.

3

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| 9.4.2010 | EN | Official Journal of the European Union | C 91/7 |
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9.4.2010

EN

Official Journal of the European Union

C 91/7

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Summary of Commission Decision

of 21 January 2010

declaring a concentration compatible with the common market and the functioning of the EEA Agreement

(Case COMP/M.5529 — Oracle/Sun Microsystems)

(notified under document C(2010) 142 final)

(Only the English text is authentic)

(Text with EEA relevance)

2010/C 91/05

On 21 January 2010, the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
   (1), and in particular Article 8(1) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case and in the working languages of the Commission on the website of the Directorate-General for Competition, at the following address:

http://ec.europa.eu/comm/competition/index_en.html

I.   THE PARTIES

| (1) | Oracle Corporation (‘Oracle’ or the ‘notifying party’, USA) is a publicly listed company, which develops and distributes enterprise software solutions and related services, including middleware, databases and enterprise application software. |
| --- | --- |

(1)

Oracle Corporation (‘Oracle’ or the ‘notifying party’, USA) is a publicly listed company, which develops and distributes enterprise software solutions and related services, including middleware, databases and enterprise application software.

| (2) | Sun Microsystems, Inc. (‘Sun’, USA) is a publicly listed company active in hardware (servers, desktops, microelectronics, and storage devices) and software and related services, including operating systems, Java technology, middleware and database software. |
| --- | --- |

(2)

Sun Microsystems, Inc. (‘Sun’, USA) is a publicly listed company active in hardware (servers, desktops, microelectronics, and storage devices) and software and related services, including operating systems, Java technology, middleware and database software.

II.   THE OPERATION

| (3) | On 30 July 2009, the Commission received a notification of a proposed concentration pursuant to Article 4 of the Regulation (EC) No 139/2004 (‘the Merger Regulation’) by which the undertaking Oracle acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of the undertaking Sun by way of purchase of shares. |
| --- | --- |

(3)

On 30 July 2009, the Commission received a notification of a proposed concentration pursuant to Article 4 of the Regulation (EC) No 139/2004 (‘the Merger Regulation’) by which the undertaking Oracle acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of the undertaking Sun by way of purchase of shares.

| (4) | The proposed transaction consists in the acquisition by Oracle of all the voting securities of Sun for approximately USD 7 400 million. As a result of the proposed transaction, Sun will be solely controlled by Oracle. The operation therefore constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. The proposed transaction has a Community dimension pursuant to Article 1(2) of the Merger Regulation. |
| --- | --- |

(4)

The proposed transaction consists in the acquisition by Oracle of all the voting securities of Sun for approximately USD 7 400 million. As a result of the proposed transaction, Sun will be solely controlled by Oracle. The operation therefore constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. The proposed transaction has a Community dimension pursuant to Article 1(2) of the Merger Regulation.

III.   SUMMARY

| (5) | After examination of the notification, the Commission adopted a decision on 3 September 2009 in which it concluded that the operation falls within the scope of the Merger Regulation and raises serious doubts as to its compatibility with the common market and the functioning of the EEA Agreement. The Commission therefore decided to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation. |
| --- | --- |

(5)

After examination of the notification, the Commission adopted a decision on 3 September 2009 in which it concluded that the operation falls within the scope of the Merger Regulation and raises serious doubts as to its compatibility with the common market and the functioning of the EEA Agreement. The Commission therefore decided to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation.

| (6) | On 9 November 2009, a Statement of Objections was addressed to the notifying party pursuant to Article 18 of the EC Merger Regulation. Oracle replied to the Statement of Objections on 3 December 2009. On 10 and 11 December 2009, at the request of the notifying party, an Oral Hearing took place. |
| --- | --- |

(6)

On 9 November 2009, a Statement of Objections was addressed to the notifying party pursuant to Article 18 of the EC Merger Regulation. Oracle replied to the Statement of Objections on 3 December 2009. On 10 and 11 December 2009, at the request of the notifying party, an Oral Hearing took place.

| (7) | The Commission's in-depth investigation revealed that the proposed transaction would not significantly impede effective competition in the common market or in a substantial part of it. |
| --- | --- |

(7)

The Commission's in-depth investigation revealed that the proposed transaction would not significantly impede effective competition in the common market or in a substantial part of it.

| (8) | The Commission therefore adopted a clearance decision pursuant to Article 8(1) of the Merger Regulation on 21 January 2010. |
| --- | --- |

(8)

The Commission therefore adopted a clearance decision pursuant to Article 8(1) of the Merger Regulation on 21 January 2010.

IV.   EXPLANATORY MEMORANDUM

A.   DATABASES

1.   The relevant product and geographic markets

| (9) | Both Oracle and Sun are active in relational database management systems (‘RDBMS’ or ‘databases’). Databases are software programmes designed to store, organise, analyse and retrieve information held in an electronic format. |
| --- | --- |

(9)

Both Oracle and Sun are active in relational database management systems (‘RDBMS’ or ‘databases’). Databases are software programmes designed to store, organise, analyse and retrieve information held in an electronic format.

| (10) | Databases play an important part in the functioning of many enterprises and organisations. They support a variety of applications, whether pre-packaged or customized in-house applications, including web applications, online transaction processing (‘OLTP’), online analytical processing (‘OLAP’) and data warehousing. Databases can also be ‘embedded’ in another hardware or software product and therefore not sold as a standalone product to its end user. |
| --- | --- |

(10)

Databases play an important part in the functioning of many enterprises and organisations. They support a variety of applications, whether pre-packaged or customized in-house applications, including web applications, online transaction processing (‘OLTP’), online analytical processing (‘OLAP’) and data warehousing. Databases can also be ‘embedded’ in another hardware or software product and therefore not sold as a standalone product to its end user.

| (11) | Databases are sold either on a proprietary basis whereby a license fee is charged to the customer or can be downloaded for free as an ‘open source’ product, for instance under the so-called GPL license. |
| --- | --- |

(11)

Databases are sold either on a proprietary basis whereby a license fee is charged to the customer or can be downloaded for free as an ‘open source’ product, for instance under the so-called GPL license.

| (12) | For most of its database products, Oracle charges a license fee for its database software and offers a separate ‘maintenance’ contract. As with all enterprise software, the license fee is typically negotiated off a ‘list’ price and is adjusted for all of the typical reasons such as volume. |
| --- | --- |

(12)

For most of its database products, Oracle charges a license fee for its database software and offers a separate ‘maintenance’ contract. As with all enterprise software, the license fee is typically negotiated off a ‘list’ price and is adjusted for all of the typical reasons such as volume.

| (13) | Sun’s main database product is MySQL that is available as an open source product free of charge under a GPL license. Direct revenues are achieved by Sun to a limited extent through (i) commercial licenses to customers that do not want to abide to the terms of the GPL license; and (ii) through support services. Sun describes MySQL on its website as the ‘world's most popular open source database’ with more than 11 million active installations and 60 000 downloads per day. |
| --- | --- |

(13)

Sun’s main database product is MySQL that is available as an open source product free of charge under a GPL license. Direct revenues are achieved by Sun to a limited extent through (i) commercial licenses to customers that do not want to abide to the terms of the GPL license; and (ii) through support services. Sun describes MySQL on its website as the ‘world's most popular open source database’ with more than 11 million active installations and 60 000 downloads per day.

| (14) | The Commission's market investigation indicated that databases are differentiated products but there is a continuum of database substitutability. |
| --- | --- |

(14)

The Commission's market investigation indicated that databases are differentiated products but there is a continuum of database substitutability.

| (15) | The Commission concluded that the relevant market in the present case is the worldwide market for RDBMS (or ‘databases’). Given the differentiated nature of databases, the Commission however examined the various segments of the overall database market for the purposes of assessing the competitive effects of the proposed transaction. |
| --- | --- |

(15)

The Commission concluded that the relevant market in the present case is the worldwide market for RDBMS (or ‘databases’). Given the differentiated nature of databases, the Commission however examined the various segments of the overall database market for the purposes of assessing the competitive effects of the proposed transaction.

2.   Competitive assessment

| (16) | The Commission considered that the proposed transaction would on balance not lead to a significant impediment to effective competition on the worldwide market for databases. |
| --- | --- |

(16)

The Commission considered that the proposed transaction would on balance not lead to a significant impediment to effective competition on the worldwide market for databases.

Market shares

| (17) | The worldwide database market had a size of approximately USD [20-22] billion in 2008 growing from USD [18-20] billion in 2007. |
| --- | --- |

(17)

The worldwide database market had a size of approximately USD [20-22] billion in 2008 growing from USD [18-20] billion in 2007.

| (18) | Gartner and IDC, two research firms, provide the following worldwide market shares on the basis of revenues for the year 2008:









  Database Vendors | Gartner | IDC |
| --- | --- | --- | --- |
| Revenues
  (USD million) | Market share | Revenues
  (USD million) | Market share |
| Oracle | [...] | [40-50] % | [...] | [40-50] % |
| IBM | [...] | [20-30] % | [...] | [20-30] % |
| Microsoft | [...] | [10-20] % | [...] | [10-20] % |
| Sybase | [...] | [0-5] % | [...] | [0-5] % |
| Teradata | [...] | [0-5] % | [...] | [0-5] % |
| Sun (MySQL) | [...] | [0-5] % | [...] | [0-5] % |
| Others | [...] | [5-10] % | [...] | [5-10] % |
| Total | [18 000-20 000] | 100 % | [20 000-22 000] | 100 % |

(18)

Gartner and IDC, two research firms, provide the following worldwide market shares on the basis of revenues for the year 2008:

Database Vendors

Gartner

IDC

Revenues

(USD million)

Market share

Revenues

(USD million)

Market share

Oracle

[...]

[40-50] %

[...]

[40-50] %

IBM

[...]

[20-30] %

[...]

[20-30] %

Microsoft

[...]

[10-20] %

[...]

[10-20] %

Sybase

[...]

[0-5] %

[...]

[0-5] %

Teradata

[...]

[0-5] %

[...]

[0-5] %

Sun (MySQL)

[...]

[0-5] %

[...]

[0-5] %

Others

[...]

[5-10] %

[...]

[5-10] %

Total

[18 000-20 000]

100 %

[20 000-22 000]

100 %

| (19) | The database market is highly concentrated: in 2008, Oracle, IBM and Microsoft together controlled approximately [80-90] % of the market in terms of revenues. Oracle's revenue market share is estimated between [40-50] % and [40-50] %. MySQL's market share, when calculated on the basis of revenues, is very small. |
| --- | --- |

(19)

The database market is highly concentrated: in 2008, Oracle, IBM and Microsoft together controlled approximately [80-90] % of the market in terms of revenues. Oracle's revenue market share is estimated between [40-50] % and [40-50] %. MySQL's market share, when calculated on the basis of revenues, is very small.

| (20) | However, the Commission's investigation showed that market shares on the basis of revenues are not a good proxy to reflect the competitive position of MySQL and other open source databases. As MySQL is predominantly distributed under a free of charge GPL license, the majority of its installations do not lead to database revenues for Sun. |
| --- | --- |

(20)

However, the Commission's investigation showed that market shares on the basis of revenues are not a good proxy to reflect the competitive position of MySQL and other open source databases. As MySQL is predominantly distributed under a free of charge GPL license, the majority of its installations do not lead to database revenues for Sun.

| (21) | On the other hand, there are no reliable data available on the total size of the database market in terms of deployments, measured for instance in number of users, active licenses or active installations. According to Gartner, MySQL is the most deployed open source database. It is the third most deployed database, behind Microsoft SQL Server and Oracle but ahead of IBM DB2 and Sybase. A 2009 survey by Evans Data Corporation, another research firm, reported that overall MySQL was the database most used by developers and IT managers in the EMEA region in the past year (45,6 %), second only to Microsoft SQL Server (48,3 %) with Oracle a distant third (25,7 %). |
| --- | --- |

(21)

On the other hand, there are no reliable data available on the total size of the database market in terms of deployments, measured for instance in number of users, active licenses or active installations. According to Gartner, MySQL is the most deployed open source database. It is the third most deployed database, behind Microsoft SQL Server and Oracle but ahead of IBM DB2 and Sybase. A 2009 survey by Evans Data Corporation, another research firm, reported that overall MySQL was the database most used by developers and IT managers in the EMEA region in the past year (45,6 %), second only to Microsoft SQL Server (48,3 %) with Oracle a distant third (25,7 %).

| (22) | These elements indicated that MySQL's competitive significance is much greater than its very small market share based on revenue would suggest. |
| --- | --- |

(22)

These elements indicated that MySQL's competitive significance is much greater than its very small market share based on revenue would suggest.

Specificities of the database market

| (23) | The market for databases is characterised by a certain degree of price discrimination. Another feature of the software market is very low marginal costs for software licenses. This generates significant economies of scale, which gives the database vendors strong incentives to reach high volumes of sales. The strong economies of scale, together with significant ability to price discriminate imply that the competition is likely to be strong for sales to less demanding users. |
| --- | --- |

(23)

The market for databases is characterised by a certain degree of price discrimination. Another feature of the software market is very low marginal costs for software licenses. This generates significant economies of scale, which gives the database vendors strong incentives to reach high volumes of sales. The strong economies of scale, together with significant ability to price discriminate imply that the competition is likely to be strong for sales to less demanding users.

| (24) | Another specificity of the database market on the side of the customer is the significant relationship specific sunk costs associated with adoption of a particular database, which result in large switching costs. The costs arise as the customer invests in database specific learning and into development of applications customized for the particular database. A costly hold-up problem may result, due to the vendor's incentives to increase the price after the customer has been locked-in with its database. Database customers after taking deployment decisions need to obtain support for long time periods, sometimes up to 15 years. Reputation and reliability of database vendors are therefore of great importance to database customers. |
| --- | --- |

(24)

Another specificity of the database market on the side of the customer is the significant relationship specific sunk costs associated with adoption of a particular database, which result in large switching costs. The costs arise as the customer invests in database specific learning and into development of applications customized for the particular database. A costly hold-up problem may result, due to the vendor's incentives to increase the price after the customer has been locked-in with its database. Database customers after taking deployment decisions need to obtain support for long time periods, sometimes up to 15 years. Reputation and reliability of database vendors are therefore of great importance to database customers.

| (25) | The database market, similar to other software markets, is characterised by strong network effects. Significant barriers to entry exist. |
| --- | --- |

(25)

The database market, similar to other software markets, is characterised by strong network effects. Significant barriers to entry exist.

Legal test and its application to the specific case

| (26) | The Horizontal Merger Guidelines recognise that some firms, despite having a relatively small market share, may be an important competitive force. A merger involving such a firm may change the competitive dynamics in a significant, anticompetitive way, in particular where the market is already concentrated. |
| --- | --- |

(26)

The Horizontal Merger Guidelines recognise that some firms, despite having a relatively small market share, may be an important competitive force. A merger involving such a firm may change the competitive dynamics in a significant, anticompetitive way, in particular where the market is already concentrated.

| (27) | Through the proposed transaction, Oracle, the leading proprietary database vendor, would acquire MySQL, the most important open source database. |
| --- | --- |

(27)

Through the proposed transaction, Oracle, the leading proprietary database vendor, would acquire MySQL, the most important open source database.

| (28) | In its in-depth investigation, the Commission therefore assessed the nature and degree of competitive constraint exerted by MySQL before the proposed transaction, the extent to which this competitive constraint would be removed after the proposed transaction, as well as the extent to which other current or potential database open source competitors or forks of MySQL would replace this competitive constraint after the proposed transaction. |
| --- | --- |

(28)

In its in-depth investigation, the Commission therefore assessed the nature and degree of competitive constraint exerted by MySQL before the proposed transaction, the extent to which this competitive constraint would be removed after the proposed transaction, as well as the extent to which other current or potential database open source competitors or forks of MySQL would replace this competitive constraint after the proposed transaction.

| (29) | There are strong specificities of this case in particular due to the open source nature of MySQL that influenced the assessment for each of the abovementioned issues:






  — | first, the Commission examined whether MySQL might potentially exert a particular constraint on Oracle and other proprietary database vendors due to its open source nature making it an ‘important competitive force’, |
| --- | --- | --- |

(29)

There are strong specificities of this case in particular due to the open source nature of MySQL that influenced the assessment for each of the abovementioned issues:

—

first, the Commission examined whether MySQL might potentially exert a particular constraint on Oracle and other proprietary database vendors due to its open source nature making it an ‘important competitive force’,

| — | secondly, while in any horizontal merger case it can be presumed that after the proposed transaction two previously competing products will no longer compete if they become owned by the same firm, it was necessary for the purposes of this decision, given the open source nature of MySQL, for the Commission to go further and to assess to what extent Oracle might have the ability and the incentive to degrade or eliminate MySQL after the implementation of the proposed transaction, |
| --- | --- |

—

secondly, while in any horizontal merger case it can be presumed that after the proposed transaction two previously competing products will no longer compete if they become owned by the same firm, it was necessary for the purposes of this decision, given the open source nature of MySQL, for the Commission to go further and to assess to what extent Oracle might have the ability and the incentive to degrade or eliminate MySQL after the implementation of the proposed transaction,

| — | thirdly, in order to assess the likelihood of sufficient and timely replacement entry after the proposed transaction, the Commission's assessment focused on the remaining open source vendors, in particular PostgreSQL, as well as on the possible new entrants that forks of MySQL would constitute, |
| --- | --- |

—

thirdly, in order to assess the likelihood of sufficient and timely replacement entry after the proposed transaction, the Commission's assessment focused on the remaining open source vendors, in particular PostgreSQL, as well as on the possible new entrants that forks of MySQL would constitute,

| — | as regards both Oracle's likely ability and incentives to degrade or eliminate MySQL and the likelihood of sufficient and timely replacement entry after the proposed merger, the public announcement made by Oracle on 14 December 2009, which was transmitted to the Commission on 11 December, also had to be taken into account in the light of the strong specificities of the open source software industry. |
| --- | --- |

—

as regards both Oracle's likely ability and incentives to degrade or eliminate MySQL and the likelihood of sufficient and timely replacement entry after the proposed merger, the public announcement made by Oracle on 14 December 2009, which was transmitted to the Commission on 11 December, also had to be taken into account in the light of the strong specificities of the open source software industry.

| (30) | In its in-depth investigation, the Commission analysed various sources of information, which in particular comprised an internal Oracle dataset HQ Apps (HQ Apps contains the communications between sales teams and Oracle headquarters relating to non-standard rebates offered by Oracle to its customers), internal documents of Oracle, Sun and third parties, surveys, as well as input provided by competitors and customers of Oracle and MySQL responding to Commission's questionnaires. |
| --- | --- |

(30)

In its in-depth investigation, the Commission analysed various sources of information, which in particular comprised an internal Oracle dataset HQ Apps (HQ Apps contains the communications between sales teams and Oracle headquarters relating to non-standard rebates offered by Oracle to its customers), internal documents of Oracle, Sun and third parties, surveys, as well as input provided by competitors and customers of Oracle and MySQL responding to Commission's questionnaires.

| (31) | As regards the situation before the proposed transaction, the Commission's investigation showed that MySQL is the largest open source database. It also appeared that MySQL has the potential to exert an important and growing competitive constraint on Oracle and other proprietary database vendors due to inter alia its specific modular architecture, its business model resulting in low pricing and absence of lock-in, and the other strengths it derives from its open source nature. The nature of this constraint has also a dynamic aspect as MySQL's specific modular architecture favours innovation by third parties developing storage engines enhancing MySQL's functionalities for some targeted higher-end applications. |
| --- | --- |

(31)

As regards the situation before the proposed transaction, the Commission's investigation showed that MySQL is the largest open source database. It also appeared that MySQL has the potential to exert an important and growing competitive constraint on Oracle and other proprietary database vendors due to inter alia its specific modular architecture, its business model resulting in low pricing and absence of lock-in, and the other strengths it derives from its open source nature. The nature of this constraint has also a dynamic aspect as MySQL's specific modular architecture favours innovation by third parties developing storage engines enhancing MySQL's functionalities for some targeted higher-end applications.

| (32) | The Commission's investigation therefore revealed that MySQL has the potential to be an important competitive force constraining Oracle in some important segments (in particular the small and medium enterprise (‘SME’) or low-end segment and some parts of the embedded segment). The Commission, however, found that MySQL does not currently constrain Oracle in all the segments of the database market (in particular in the high-end segment). In addition, Oracle will continue to face competitive pressure from a number of other proprietary database vendors including Microsoft, IBM and Sybase. |
| --- | --- |

(32)

The Commission's investigation therefore revealed that MySQL has the potential to be an important competitive force constraining Oracle in some important segments (in particular the small and medium enterprise (‘SME’) or low-end segment and some parts of the embedded segment). The Commission, however, found that MySQL does not currently constrain Oracle in all the segments of the database market (in particular in the high-end segment). In addition, Oracle will continue to face competitive pressure from a number of other proprietary database vendors including Microsoft, IBM and Sybase.

| (33) | After the proposed merger, it could be expected that the Oracle database and MySQL would stop competing as they would be offered by the same vendor. Some concerns have been expressed that Oracle might stop offering MySQL under a GPL license, may degrade or stop developing the GPL version of MySQL, or may prevent constraint from third-party storage engines by modifying the interface or refusing to grant storage engine vendors the commercial licenses that would allow them to market proprietary versions of their storage engines working with MySQL. |
| --- | --- |

(33)

After the proposed merger, it could be expected that the Oracle database and MySQL would stop competing as they would be offered by the same vendor. Some concerns have been expressed that Oracle might stop offering MySQL under a GPL license, may degrade or stop developing the GPL version of MySQL, or may prevent constraint from third-party storage engines by modifying the interface or refusing to grant storage engine vendors the commercial licenses that would allow them to market proprietary versions of their storage engines working with MySQL.

| (34) | The Commission's investigation, however, found that Oracle's likely ability and incentives to degrade and eliminate MySQL after the proposed merger would be constrained due to the open source nature of MySQL. |
| --- | --- |

(34)

The Commission's investigation, however, found that Oracle's likely ability and incentives to degrade and eliminate MySQL after the proposed merger would be constrained due to the open source nature of MySQL.

| (35) | As part of the ten pledges Oracle publicly made vis-à-vis MySQL's users, customers and developers following the Oral Hearing, Oracle announced that it will continue to enhance MySQL and make subsequent versions of MySQL, including Version 6, available under the GPL. Furthermore, Oracle will maintain and periodically enhance MySQL’s Pluggable Storage Engine Architecture to allow users the flexibility to choose from a portfolio of native and third party supplied storage engines. Also, commercial licenses will not be required by Oracle from third party storage engine vendors to implement the application programming interfaces available as part of MySQL's Pluggable Storage Engine Architecture. Upon termination of their current MySQL OEM Agreement, Oracle shall offer storage engine vendors, who at present have a commercial MySQL license from Sun, an extension of their agreement on the same terms and conditions for a term not exceeding 10 December 2014. |
| --- | --- |

(35)

As part of the ten pledges Oracle publicly made vis-à-vis MySQL's users, customers and developers following the Oral Hearing, Oracle announced that it will continue to enhance MySQL and make subsequent versions of MySQL, including Version 6, available under the GPL. Furthermore, Oracle will maintain and periodically enhance MySQL’s Pluggable Storage Engine Architecture to allow users the flexibility to choose from a portfolio of native and third party supplied storage engines. Also, commercial licenses will not be required by Oracle from third party storage engine vendors to implement the application programming interfaces available as part of MySQL's Pluggable Storage Engine Architecture. Upon termination of their current MySQL OEM Agreement, Oracle shall offer storage engine vendors, who at present have a commercial MySQL license from Sun, an extension of their agreement on the same terms and conditions for a term not exceeding 10 December 2014.

| (36) | Oracle announced that it will comply with these points worldwide until the fifth anniversary of the closing of the proposed transaction. |
| --- | --- |

(36)

Oracle announced that it will comply with these points worldwide until the fifth anniversary of the closing of the proposed transaction.

| (37) | In line with its public announcement Oracle has already taken steps to implement some of the pledges by immediately sending letters to third-party storage engine vendors in which Oracle has pledged to amend the existing contractual terms by reproducing the relevant content of its public announcement. These elements are therefore legally binding on Oracle. |
| --- | --- |

(37)

In line with its public announcement Oracle has already taken steps to implement some of the pledges by immediately sending letters to third-party storage engine vendors in which Oracle has pledged to amend the existing contractual terms by reproducing the relevant content of its public announcement. These elements are therefore legally binding on Oracle.

| (38) | The public announcement made by Oracle does not constitute formal remedies. The Commission has a long established and consistent practice regarding the remedies that are necessary in order to clear a merger once competition concerns have been established at the end of the investigation. These principles fully apply whenever the Commission has identified competition concerns. The situation, however, is different when the facts of the case allow the Commission to arrive to the conclusion that the merger will not raise competition concerns. |
| --- | --- |

(38)

The public announcement made by Oracle does not constitute formal remedies. The Commission has a long established and consistent practice regarding the remedies that are necessary in order to clear a merger once competition concerns have been established at the end of the investigation. These principles fully apply whenever the Commission has identified competition concerns. The situation, however, is different when the facts of the case allow the Commission to arrive to the conclusion that the merger will not raise competition concerns.

| (39) | The public announcement made by Oracle on 14 December 2009, addressed to the general public and in particular to the open source community and the subsequent actions already taken to implement some of the pledges therefore constitute factual elements that the Commission had to take into account, along with all the other elements in its file, in its assessment of the likely impact of the transaction on the database market. |
| --- | --- |

(39)

The public announcement made by Oracle on 14 December 2009, addressed to the general public and in particular to the open source community and the subsequent actions already taken to implement some of the pledges therefore constitute factual elements that the Commission had to take into account, along with all the other elements in its file, in its assessment of the likely impact of the transaction on the database market.

| (40) | Due to the specific characteristics of the open source product MySQL, the Commission found that Oracle will continue to offer and enhance MySQL under the GPL after the proposed transaction. As regards the potential dynamic constraint exerted by MySQL, the public pledges addressing storage engine vendors are very likely to reduce Oracle's ability to disadvantage features of products that are based on MySQL, including those products that compete in the market with Oracle databases. |
| --- | --- |

(40)

Due to the specific characteristics of the open source product MySQL, the Commission found that Oracle will continue to offer and enhance MySQL under the GPL after the proposed transaction. As regards the potential dynamic constraint exerted by MySQL, the public pledges addressing storage engine vendors are very likely to reduce Oracle's ability to disadvantage features of products that are based on MySQL, including those products that compete in the market with Oracle databases.

| (41) | The Commission's investigation also revealed that after the proposed transaction other open source databases, in particular PostgreSQL, have the potential to constrain Oracle to an important extent and therefore replace the competitive constraint currently exerted by MySQL in a timely and sufficient manner. |
| --- | --- |

(41)

The Commission's investigation also revealed that after the proposed transaction other open source databases, in particular PostgreSQL, have the potential to constrain Oracle to an important extent and therefore replace the competitive constraint currently exerted by MySQL in a timely and sufficient manner.

| (42) | Finally, the Commission's investigation suggested that it cannot be excluded that forks of MySQL might also develop to exercise a constraint on Oracle to some extent. |
| --- | --- |

(42)

Finally, the Commission's investigation suggested that it cannot be excluded that forks of MySQL might also develop to exercise a constraint on Oracle to some extent.

Conclusion

| (43) | The Commission thus concluded that the proposed transaction will not lead to a significant impediment to effective competition in relation to the worldwide market for databases. |
| --- | --- |

(43)

The Commission thus concluded that the proposed transaction will not lead to a significant impediment to effective competition in relation to the worldwide market for databases.

B.   MIDDLEWARE

1.   The relevant product and geographic markets

| (44) | Both Oracle and Sun are active in the middleware sector. Middleware refers to a wide category of software products that provide infrastructure for applications. |
| --- | --- |

(44)

Both Oracle and Sun are active in the middleware sector. Middleware refers to a wide category of software products that provide infrastructure for applications.

| (45) | In the recent Oracle/BEA decision, the Commission left the product market definition open but stated that the market investigation had confirmed that middleware could be sub-segmented according to the end use of the product. |
| --- | --- |

(45)

In the recent Oracle/BEA decision, the Commission left the product market definition open but stated that the market investigation had confirmed that middleware could be sub-segmented according to the end use of the product.

| (46) | In the present case, the exact product market definition in relation to middleware could be left open, as the proposed transaction did not raise serious doubts as to its compatibility with the common market under any alternative product market definition. |
| --- | --- |

(46)

In the present case, the exact product market definition in relation to middleware could be left open, as the proposed transaction did not raise serious doubts as to its compatibility with the common market under any alternative product market definition.

| (47) | Concerning the geographic market definition, it was undisputed that it is worldwide. |
| --- | --- |

(47)

Concerning the geographic market definition, it was undisputed that it is worldwide.

2.   Competitive assessment

| (48) | The worldwide overall middleware market amounted to approximately EUR 9,7 billion in 2007. The table below sets out IDC's worldwide market share estimates (based on revenue) for Oracle, Sun and their main competitors for 2006 and 2007.







  Vendors | 2006 | 2007 |
| --- | --- | --- | --- |
| IBM | [20-30] % | [20-30] % |
| Oracle | [10-20] % | [10-20] % |
| SWIFT | [0-5] % | [0-5] % |
| Microsoft | [0-5] % | [0-5] % |
| Sterling Commerce | [0-5] % | [0-5] % |
| TIBCO | [0-5] % | [0-5] % |
| Sun | [0-5] % | [0-5] % |
| Others | [30-40] % | [30-40] % |

(48)

The worldwide overall middleware market amounted to approximately EUR 9,7 billion in 2007. The table below sets out IDC's worldwide market share estimates (based on revenue) for Oracle, Sun and their main competitors for 2006 and 2007.

Vendors

2006

2007

IBM

[20-30] %

[20-30] %

Oracle

[10-20] %

[10-20] %

SWIFT

[0-5] %

[0-5] %

Microsoft

[0-5] %

[0-5] %

Sterling Commerce

[0-5] %

[0-5] %

TIBCO

[0-5] %

[0-5] %

Sun

[0-5] %

[0-5] %

Others

[30-40] %

[30-40] %

| (49) | The market investigation showed that Sun is not a competitively significant player in the overall middleware segment. Most customers do not consider Oracle and Sun as close competitors in this segment. The middleware market is competitive and the merged entity will continue to face competition from a number of significant market players. |
| --- | --- |

(49)

The market investigation showed that Sun is not a competitively significant player in the overall middleware segment. Most customers do not consider Oracle and Sun as close competitors in this segment. The middleware market is competitive and the merged entity will continue to face competition from a number of significant market players.

| (50) | As regards the different middleware sub-segments, in 2007 Oracle and Sun's combined market shares exceed 15 % only in the offering of (i) application server middleware; (ii) enterprise portals; and (iii) integration and process automation middleware (and more specifically enterprise service bus (ESB) and business process management software (BPMS)). |
| --- | --- |

(50)

As regards the different middleware sub-segments, in 2007 Oracle and Sun's combined market shares exceed 15 % only in the offering of (i) application server middleware; (ii) enterprise portals; and (iii) integration and process automation middleware (and more specifically enterprise service bus (ESB) and business process management software (BPMS)).

| (51) | Oracle's market share in application server software is ca. [20-30] % and Sun's market share is [0-5] %. Oracle's share in the enterprise portals segment is just over [20-30] % and the increment in Oracle's market share resulting from the proposed transaction will be small. In the ESB segment Oracle's market share is ca. [10-20] % and Sun's market share is ca. [5-10] % leading to a combined market share of ca. [20-30] %. In the BPMS segment Oracle's market share is ca. [10-20] % while Sun's market share is ca. [0-5] %. |
| --- | --- |

(51)

Oracle's market share in application server software is ca. [20-30] % and Sun's market share is [0-5] %. Oracle's share in the enterprise portals segment is just over [20-30] % and the increment in Oracle's market share resulting from the proposed transaction will be small. In the ESB segment Oracle's market share is ca. [10-20] % and Sun's market share is ca. [5-10] % leading to a combined market share of ca. [20-30] %. In the BPMS segment Oracle's market share is ca. [10-20] % while Sun's market share is ca. [0-5] %.

| (52) | Also in these segments, the market shares remain moderate (even if taking into account the fact that the numbers reported for Sun's market share may not be entirely accurate due to the open source nature of some of its product offerings). Moreover, Sun's products are not the closest substitutes for Oracle's products in these segments and the segments are competitive with several large competitors being active in these segments. |
| --- | --- |

(52)

Also in these segments, the market shares remain moderate (even if taking into account the fact that the numbers reported for Sun's market share may not be entirely accurate due to the open source nature of some of its product offerings). Moreover, Sun's products are not the closest substitutes for Oracle's products in these segments and the segments are competitive with several large competitors being active in these segments.

Conclusion

| (53) | The Commission thus concluded that the proposed transaction will not lead to a significant impediment to effective competition in relation to the overall market for middleware or any of its possible sub-segments. |
| --- | --- |

(53)

The Commission thus concluded that the proposed transaction will not lead to a significant impediment to effective competition in relation to the overall market for middleware or any of its possible sub-segments.

C.   JAVA

1.   The relevant product and geographic markets

| (54) | Java is a ‘development environment’ that was created by Sun about 20 years ago. A development environment is a software platform allowing developers to build and deploy software applications. A major characteristic of the Java development environment is that it is ‘open’ in the sense that it is independent of the underlying operating system or hardware on which Java-based applications run. |
| --- | --- |

(54)

Java is a ‘development environment’ that was created by Sun about 20 years ago. A development environment is a software platform allowing developers to build and deploy software applications. A major characteristic of the Java development environment is that it is ‘open’ in the sense that it is independent of the underlying operating system or hardware on which Java-based applications run.

| (55) | Although open source implementations of many parts of Java are available, Sun controls the most important related Intellectual Property (IP) rights that need to be licensed by software developers, in particular by middleware and Enterprise Application Software (EAS) developers. Sun therefore controls an important input for firms developing software with the Java language. The main other development environment is .NET, Microsoft's proprietary and closed environment, which can only be used for the development of software working on Windows. |
| --- | --- |

(55)

Although open source implementations of many parts of Java are available, Sun controls the most important related Intellectual Property (IP) rights that need to be licensed by software developers, in particular by middleware and Enterprise Application Software (EAS) developers. Sun therefore controls an important input for firms developing software with the Java language. The main other development environment is .NET, Microsoft's proprietary and closed environment, which can only be used for the development of software working on Windows.

| (56) | There were no Commission precedents on the definition of a market for development platforms. For the purposes of the present decision, the product market definition could be left open, as on the narrowest segment, which is the licensing of JAVA IP rights, no competition concerns arose. The licensing of Java IP rights can be considered to take place on a worldwide basis. |
| --- | --- |

(56)

There were no Commission precedents on the definition of a market for development platforms. For the purposes of the present decision, the product market definition could be left open, as on the narrowest segment, which is the licensing of JAVA IP rights, no competition concerns arose. The licensing of Java IP rights can be considered to take place on a worldwide basis.

2.   Competitive assessment

| (57) | The market investigation confirmed that Java licences are an important input for software programmers. Java's importance is related to its widespread standardized approach, which is the key factor of its strength versus the proprietary .NET platform. |
| --- | --- |

(57)

The market investigation confirmed that Java licences are an important input for software programmers. Java's importance is related to its widespread standardized approach, which is the key factor of its strength versus the proprietary .NET platform.

| (58) | It seemed that any possible foreclosure strategy engaged by Oracle would have a limited impact on downstream EAS competitors, given that their dependence on a Java commercial license is limited. On the other hand, Oracle's competitors for middleware products need commercial licenses for Java Technology Compatibility Kits (TCK) — either for the modification of the source code of a Reference Implementation or for the independent implementation — in order to commercially distribute software products that are certified to comply with the Java platform specification. The freely available versions of the implementation of the J2EE middleware products (OpenJDK or binary executable versions) are not sufficient for their needs. |
| --- | --- |

(58)

It seemed that any possible foreclosure strategy engaged by Oracle would have a limited impact on downstream EAS competitors, given that their dependence on a Java commercial license is limited. On the other hand, Oracle's competitors for middleware products need commercial licenses for Java Technology Compatibility Kits (TCK) — either for the modification of the source code of a Reference Implementation or for the independent implementation — in order to commercially distribute software products that are certified to comply with the Java platform specification. The freely available versions of the implementation of the J2EE middleware products (OpenJDK or binary executable versions) are not sufficient for their needs.

| (59) | The ability to engage in any foreclosure strategy crucially depends on the legal and procedural framework under which the JCP operates and to which Oracle will be bound after the proposed transaction. |
| --- | --- |

(59)

The ability to engage in any foreclosure strategy crucially depends on the legal and procedural framework under which the JCP operates and to which Oracle will be bound after the proposed transaction.

| (60) | The complaints and the submissions from the respondents to the market investigation rested on the assumption that Oracle, once it had acquired control of Sun, would also ‘control’ the JCP and, as a consequence, the licensing of Java-related IP rights, in particular in relation to the TCKs. The Commission assessed the assumptions made by the complainants in the light of the rules governing the JCP and concluded that, on the basis of the current framework, there were no grounds to conclude that the merged entity would have the ability to engage in a foreclosure strategy. |
| --- | --- |

(60)

The complaints and the submissions from the respondents to the market investigation rested on the assumption that Oracle, once it had acquired control of Sun, would also ‘control’ the JCP and, as a consequence, the licensing of Java-related IP rights, in particular in relation to the TCKs. The Commission assessed the assumptions made by the complainants in the light of the rules governing the JCP and concluded that, on the basis of the current framework, there were no grounds to conclude that the merged entity would have the ability to engage in a foreclosure strategy.

| (61) | A number of software vendors expressed the view during the market investigation that Oracle would also have the incentive to engage in input foreclosure in the form of raising rivals’ costs in access to Java. This was because Oracle has a different product portfolio than Sun. Oracle is a leading supplier of databases, middleware and software applications and Java is an important input in particular for middleware and software applications. |
| --- | --- |

(61)

A number of software vendors expressed the view during the market investigation that Oracle would also have the incentive to engage in input foreclosure in the form of raising rivals’ costs in access to Java. This was because Oracle has a different product portfolio than Sun. Oracle is a leading supplier of databases, middleware and software applications and Java is an important input in particular for middleware and software applications.

| (62) | In the assessment of incentives for input foreclosure the Commission considered potential benefits and costs to the merged entity from such behaviour. Effective foreclosure from complete access to Java could result, in a reduction of competitors’ ability to exercise competitive constraint on the merged entity, because customers may value less software products which are not Java compliant, regardless of their functionality. |
| --- | --- |

(62)

In the assessment of incentives for input foreclosure the Commission considered potential benefits and costs to the merged entity from such behaviour. Effective foreclosure from complete access to Java could result, in a reduction of competitors’ ability to exercise competitive constraint on the merged entity, because customers may value less software products which are not Java compliant, regardless of their functionality.

| (63) | On the other hand, the costs to the merged entity from foreclosing competitors are potentially significant. With foreclosure, the merged entity could suffer a loss of (limited) revenues corresponding to Java licenses currently granted to the competitors that would be foreclosed. More importantly, foreclosure is likely to result in a loss of support that Java currently enjoys among the customers. This industry is characterised by strong network effects which would be lost with the loss of community support for Java. This would result in a significant reduction of the value of Java compliant applications and Java as an application development framework itself. There exist significant competitors (e.g. Microsoft), which do not base their value proposition heavily on Java and Java compliance, and which would benefit from such a foreclosure. As such the foreclosure and the resulting loss in terms of network effects would adversely affect competitiveness of the software products of the merged entity itself. Moreover, following attempts to foreclose competitors, Java forks could appear, as software vendors would turn to alternatives. This would result in fragmentation and the fracture of the Java standard, resulting in the loss of network effects and further reduce the value of Java compliance of applications. |
| --- | --- |

(63)

On the other hand, the costs to the merged entity from foreclosing competitors are potentially significant. With foreclosure, the merged entity could suffer a loss of (limited) revenues corresponding to Java licenses currently granted to the competitors that would be foreclosed. More importantly, foreclosure is likely to result in a loss of support that Java currently enjoys among the customers. This industry is characterised by strong network effects which would be lost with the loss of community support for Java. This would result in a significant reduction of the value of Java compliant applications and Java as an application development framework itself. There exist significant competitors (e.g. Microsoft), which do not base their value proposition heavily on Java and Java compliance, and which would benefit from such a foreclosure. As such the foreclosure and the resulting loss in terms of network effects would adversely affect competitiveness of the software products of the merged entity itself. Moreover, following attempts to foreclose competitors, Java forks could appear, as software vendors would turn to alternatives. This would result in fragmentation and the fracture of the Java standard, resulting in the loss of network effects and further reduce the value of Java compliance of applications.

| (64) | On balance, the Commission concluded that it was very unlikely that the benefits of foreclosure of access to Java would exceed the costs of such behaviour for the merged entity and that, therefore, the merged entity would have no incentive to foreclose. |
| --- | --- |

(64)

On balance, the Commission concluded that it was very unlikely that the benefits of foreclosure of access to Java would exceed the costs of such behaviour for the merged entity and that, therefore, the merged entity would have no incentive to foreclose.

Conclusion

| (65) | The Commission thus concluded that the proposed transaction will not lead to a significant impediment to effective competition in relation to the licensing of IP rights connected to the Java development environment and of the downstream overall markets for middleware and for EAS. |
| --- | --- |

(65)

The Commission thus concluded that the proposed transaction will not lead to a significant impediment to effective competition in relation to the licensing of IP rights connected to the Java development environment and of the downstream overall markets for middleware and for EAS.

D.   IT STACK

1.   The relevant product and geographic markets

| (66) | Oracle and Sun are also active in other parts of the IT stack, which are the markets for servers, storage solutions, operating systems and EAS. The Commission therefore assessed whether the merger would lead to any adverse vertical or conglomerate effects. The precise product market definition for these markets could be left open. The relevant geographic markets are worldwide. |
| --- | --- |

(66)

Oracle and Sun are also active in other parts of the IT stack, which are the markets for servers, storage solutions, operating systems and EAS. The Commission therefore assessed whether the merger would lead to any adverse vertical or conglomerate effects. The precise product market definition for these markets could be left open. The relevant geographic markets are worldwide.

2.   Competitive assessment

| (67) | The market shares of Oracle and Sun (based on IDC) were as follows in 2007: | Oracle | Sun |
| --- | --- | --- | --- |
| Hardware/Servers | — | [10-20] % |
| Operating System | — | [5-10] % (2006) |
| Databases | [40-50] % | [0-5] % |
| Middleware | [10-20] % | [0-5] % |
| Enterprise Application Software | [5-10] % | — |

(67)

The market shares of Oracle and Sun (based on IDC) were as follows in 2007:

Oracle

Sun

Hardware/Servers

—

[10-20] %

Operating System

—

[5-10] % (2006)

Databases

[40-50] %

[0-5] %

Middleware

[10-20] %

[0-5] %

Enterprise Application Software

[5-10] %

—

| (68) | The merged entity would be the only firm together with IBM to be present in all the elements of the technology stack. |
| --- | --- |

(68)

The merged entity would be the only firm together with IBM to be present in all the elements of the technology stack.

| (69) | The Commission found that foreclosure of competing database vendors from access to customers using Sun's operating system is unlikely because the market share of Sun in operating systems is low, i.e. below [5-10] %. Indeed, the market investigation revealed that the majority of customers considered that Oracle would not have the incentive to foreclose. |
| --- | --- |

(69)

The Commission found that foreclosure of competing database vendors from access to customers using Sun's operating system is unlikely because the market share of Sun in operating systems is low, i.e. below [5-10] %. Indeed, the market investigation revealed that the majority of customers considered that Oracle would not have the incentive to foreclose.

| (70) | The Commission also found that it is unlikely that Oracle would degrade the interoperability of one of its products in one layer of the technology stack with product from competitors in other layers. As in all layers but databases the market share of the merged entity is limited, such a practice appears unlikely to benefit the merged entity. This was confirmed by the market investigation. |
| --- | --- |

(70)

The Commission also found that it is unlikely that Oracle would degrade the interoperability of one of its products in one layer of the technology stack with product from competitors in other layers. As in all layers but databases the market share of the merged entity is limited, such a practice appears unlikely to benefit the merged entity. This was confirmed by the market investigation.

Conclusion

| (71) | The Commission thus concluded that the proposed transaction will not lead to a significant impediment to effective competition due to the merged entity's presence in the IT stack. |
| --- | --- |

(71)

The Commission thus concluded that the proposed transaction will not lead to a significant impediment to effective competition due to the merged entity's presence in the IT stack.

V.   CONCLUSION

| (72) | For the reasons mentioned above, the decision concluded that the proposed transaction would not significantly impede effective competition in the common market or in a substantial part of it. |
| --- | --- |

(72)

For the reasons mentioned above, the decision concluded that the proposed transaction would not significantly impede effective competition in the common market or in a substantial part of it.

| (73) | Consequently, the Commission declared the concentration compatible with the common market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(1) of the Merger Regulation and Article 57 of the EEA Agreement. |
| --- | --- |

(73)

Consequently, the Commission declared the concentration compatible with the common market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(1) of the Merger Regulation and Article 57 of the EEA Agreement.

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(1)  OJ L 24, 29.1.2004, p. 1.

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NOTICES FROM MEMBER STATES

| 9.4.2010 | EN | Official Journal of the European Union | C 91/14 |
| --- | --- | --- | --- |

9.4.2010

EN

Official Journal of the European Union

C 91/14

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Summary information communicated by Member States on State aid granted in conformity with Commission Regulation (EC) No 736/2008 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of fisheries products

(Text with EEA relevance)

2010/C 91/06

Aid No: XF 12/09

Member State: Italy

Region/Authority granting the aid: Regione Autonoma Friuli Venezia Giulia

Direzione centrale risorse agricole, naturali e forestali

Servizio pesca e acquacoltura

Title of aid scheme/name of company receiving individual aid: regolamento recante criteri e modalità per l’attuazione degli interventi creditizi in materia di pesca e acquacoltura erogabili ai sensi dell’articolo 5, lettera n) della legge regionale 20 novembre 1982 n. 80

Legal basis: decreto del Presidente della Regione 11 maggio 2009, n. 0125/Pres.

Annual expenditure planned under the scheme or amount of individual aid granted: EUR 412 000

Maximum aid intensity: Up to 40 %

Date of entry into force:

Duration of the scheme or individual aid award (not later than 30 June 2014); indicate:

| — | under the scheme: the date until which aid may be granted; |
| --- | --- |

—

under the scheme: the date until which aid may be granted;

| — | until 30 June 2014 |
| --- | --- |

—

until 30 June 2014

Objective of aid: The aid is intended to support credit schemes for SMEs engaged in constructing, enlarging and modernising aquaculture facilities, investments in the processing and marketing sector, and the application of new technologies to improve the environment, hygiene conditions and product quality

Indicate which of Articles 8 to 24 is used: Article 11 ‘Aid to productive investments in the aquaculture sector’ and Article 16 ‘Aid to processing and marketing’

Activities concerned: Fisheries and aquaculture

Name and address of the granting authority:

| Direzione centrale risorse agricole, naturali e forestali |
| --- |
| Servizio pesca e acquacoltura |
| Via Sabbadini 31 |
| 33100 Udine UD |
| ITALIA |
| Tel. +39 0432555225 |
| Fax +39 0432555140 |
| E-mail: s.pesca.agrifor@regione.fvg.it |

Direzione centrale risorse agricole, naturali e forestali

Servizio pesca e acquacoltura

Via Sabbadini 31

33100 Udine UD

ITALIA

Tel. +39 0432555225

Fax +39 0432555140

E-mail: s.pesca.agrifor@regione.fvg.it

Web address where the full text of the scheme or the criteria and conditions under which ad hoc aid is granted outside of an aid scheme can be found: http://arpebur.regione.fvg.it/newbur/visionaBUR?bnum=2009/05/20/20

Justification: indicate why a State aid scheme has been established instead of assistance under the European Fisheries Fund: A scheme has been established to implement Regional Law No 80 of 20 November 1982, which provides for credit schemes for fisheries and aquaculture, as an alternative to the types of aid provided for under the EFF

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| 9.4.2010 | EN | Official Journal of the European Union | C 91/15 |
| --- | --- | --- | --- |

9.4.2010

EN

Official Journal of the European Union

C 91/15

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Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community

Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations

(Text with EEA relevance)

2010/C 91/07

| Member State | France |
| --- | --- |
| Route concerned | Le-Puy-en-Velay (Loudes)–Paris (Orly) |
| Period of validity of the contract | 14 January 2011-13 January 2015 |
| Deadline for submission of applications and tenders | for applications (first step): | 8 June 2010 (12:00, local time) |

Member State

France

Route concerned

Le-Puy-en-Velay (Loudes)–Paris (Orly)

Period of validity of the contract

14 January 2011-13 January 2015

Deadline for submission of applications and tenders

for applications (first step):

8 June 2010 (12:00, local time)

| | for tenders (second step) |
| --- | --- |

for tenders (second step)

| | 16 July 2010 (12:00, local time) |
| --- | --- |

16 July 2010 (12:00, local time)

Address from which the text of the invitation to tender and any relevant information and/or documentation relating to the public tender and the public service obligation can be obtained

| Syndicat mixte de gestion de l’aérodrome départemental Le-Puy-en-Velay/Loudes |
| --- |
| Aéroport Le Puy-en-Velay/Loudes |
| 43320 Loudes |
| FRANCE |
| MM. Alain EYRAUD et Pascal REY |
| Tel. +33 471086187 |
| Fax +33 471086640 |
| E-mail: aeroport.le-puy-en-velay@orange.fr |

Syndicat mixte de gestion de l’aérodrome départemental Le-Puy-en-Velay/Loudes

Aéroport Le Puy-en-Velay/Loudes

43320 Loudes

FRANCE

MM. Alain EYRAUD et Pascal REY

Tel. +33 471086187

Fax +33 471086640

E-mail: aeroport.le-puy-en-velay@orange.fr

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