EN Official Journal of the European Union C 206/6

Final report of the Hearing Officer in Case COMP/M.3216 — Oracle/PeopleSoft

(pursuant to Article 15 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)

(2005/C 206/07)

On 14 October 2003, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EEC) No 4064/69, as amended by Regulation (EC) No 1310/97 (‘Merger Regulation’), by which the undertaking Oracle Corporation United States (‘Oracle’) acquires within the meaning of Article 3(1)(b) of the Merger Regulation, sole control of the undertaking PeopleSoft Inc. United States (‘PeopleSoft’) by way of a public bid.

On 17 November 2003 the Commission decided to initiate proceedings in this case pursuant to Article 6(1)(c) of the Merger Regulation and Article 57 of the EEA Agreement.

On 6 January 2004 the procedure was suspended when Oracle failed to supply information requested by a formal Commission decision within the time limit specified therein. Upon receipt of the information the procedure was resumed 12 February 2004.

In the course of the Commission's in-depth investigation, Oracle requested a number of documents on the basis of the Commission's Best Practices on the conduct of EC merger control proceedings. Oracle did not receive all the documents it had requested. However, considerable efforts were made to ensure that key documents were made available including, in particular, non-confidential submissions provided by PeopleSoft.

A Statement of Objections (‘SO’) was sent to Oracle on 12 March 2004. Upon request, an extension of the time limit to reply was granted until 29 March 2004.

Access to the file was made available to Oracle by way of CD-Rom on 12 March 2004.

Confidential data on Bids and Deals was deleted from the responses submitted by competitors but instead was made available to Oracle in a non-confidential format on a spreadsheet. Bid data obtained from customers was provided in the form of a Word document analysing the customer replies, together with a spreadsheet with data compiled from replies, expressed in a non-confidential manner.

A data room was set up to enable Oracle's economists to verify PeopleSoft bidding information that had been used for the regression analysis submitted to the Commission. This was made possible due to a confidentiality agreement signed by Oracle's economists in agreement with PeopleSoft. In addition, on 22 March 2004, Oracle's economists were given access to more precise figures on bid data in replies from competitors and customers. Names of competitors and customers, however, were not disclosed.

Oracle's view was that these measures were not sufficient to provide them with the appropriate degree of access. In particular, Oracle wanted to verify the accuracy of figures provided in the spread-sheets and also via their economists, to analyse information provided by PeopleSoft and other market participants that in Oracle's view would be useful to their defence. Specifically in this respect, Oracle requested access to the names of the competitors and customers providing replies.

My own view at the time was that sufficient access had been granted to Oracle in order to enable them to exercise their rights of defence at that stage of the procedure.

When further access was not made available, Oracle's views on this subject were set out in detail in their reply to the SO. This would have required a substantiated response.

In the event however, the fact that the Commission's objections against the proposed concentration are now dropped means that the issue of access to file is rendered obsolete. It is also noted that, subsequent to the reply to the SO and the oral hearing, the factual basis of the Commission's investigation and competitive assessment, was broadened by additional information provided by Oracle in response to the Commission's request for information and also by information rendered available during the US trial.

As regards PeopleSoft, as an involved party, they were provided with a non-confidential version of the SO in accordance with Article 13(3) second paragraph of Regulation (EC) No 447/98 (Implementing Regulation). Certain additional documents submitted by Oracle in the course of the procedure were also disclosed as soon as non-confidential versions were made available. Upon request, PeopleSoft also received a non-confidential version of Oracle's reply to the SO, albeit only on 3 May 2004.

The Oral Hearing took place on 30 March and 1 April 2004. Apart from Oracle and PeopleSoft, SAP, ING Europe and SSA Global were admitted to participate as interested third parties. These third parties were supplied by the case-team with a non-confidential version of the SO.

On 13 April 2004 the Commission suspended the procedure in the case for a second time further to the failure of Oracle to respect the time limit to supply information requested in a formal Commission decision. This request had been made in order to enlarge the scope of the factual information upon which the Commission's competition assessment could be made. Upon request, PeopleSoft was supplied with a copy of the Commission decision sent to Oracle. The procedure was resumed on 7 October upon receipt of the information required by the Commission.

On the basis of a further analysis based on all evidence acquired, DG Competition has concluded that the objections set out in the SO cannot be maintained.

In the light of the above, I consider that the rights to be heard of all participants to the present proceeding have been respected.