EN Official Journal of the European Union C 260/15

Action brought on 1 July 2010 — Monty Program v Commission

(Case T-292/10)

()

2010/C 260/21

Language of the case: English

Parties

Applicant: Monty Program AB (Tuusula, Finland) (represented by: H. Anttilainen-Mochnacz, lawyer and C. Pouncey, Solicitor)

Defendant: European Commission

Form of order sought

— Annul Article 1 of Commission Decision No C(2010) 142 final of 21 January 2010, in Case COMP/M.5529 — Oracle/Sun Microsystems; and

— Order the Commission to pay the applicant’s costs in the proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Article 1 of the Commission Decision No C(2010) 142 final of 21 January 2010 in Case COMP/M.5529 — Oracle/Sun Microsystems declaring Oracle Corporation's acquisition of sole control of Sun Microsystems compatible with the common market and the functioning of the EEA Agreement in accordance with Council Regulation (EC) No 139/2004 (1).

In support of its submissions, the applicant puts forward the following pleas in law:

Firstly, the applicant claims that Commission has wrongly assessed the nature of Oracle’s pledges, thereby infringing Article 2 of the EC Merger Regulation and the Commission notice on remedies (2). In applicant’s view, by incorrectly classifying Oracle’s ten pledges of future behaviour as new factual elements allowing the removal of all competition concerns and an unconditional clearance decision, the Commission committed an error in law.

Secondly, the applicant claims that by not applying the Commission notice on remedies, and consequently failing to market test the pledges, the Commission has breached both essential procedural rules and the applicant's legitimate expectations by depriving it of the opportunity formally to make its views on Oracle's pledges known. Furthermore, by classifying Oracle's pledges as new factual elements rather than as commitments, the Commission has misused its powers.

Thirdly, the Commission has infringed Article 2 of the EC merger Regulation by incorrectly assessing the effects of the pledges on Oracle post merger and in doing so has failed to meet the standard of proof imposed on the Commission under EU law, thereby committing a manifest error of assessment. The Commission accordingly erred in law in taking a clearance decision under Article 2 of the EC Merger Regulation.

Finally, the applicant claims that the Commission has committed a manifest error of assessment in its evaluation of the competitive constraint imposed by other open source competitors on Oracle post merger. The Commission erred in its assessment that even if Oracle were to remove MySQL (Sun Microsystems’ main database software product) from the market following the merger, other open source database vendors would replace the competitive constraint exerted by MySQL.

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

(2) Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (OJ 2008 C 267, p. 1).