Founded in 1972, SAP is one of the largest software companies in the world with a turnover of over 52.59 billion euros in 2024. Many German and European companies, in particular, use SAP software to handle their business processes, whether in the areas of controlling, personnel management, or supply chain planning.
The European Commission suspects that SAP may have used its dominant market position in the area of software development and marketing to induce its customers to purchase maintenance and customer services for the software permanently and exclusively from SAP. On the one hand, this could hinder SAP's competitors in the area of maintenance and after-sales services, and, on the other hand, induce customers to purchase maintenance and after-sales services from SAP at higher prices and less favorable conditions than would be possible with SAP's competitors.
According to the current status of the investigations, the practices objected to by the EU Commission include the following in particular:
Simply put, the European Commission is looking into claims that customers are not able to freely choose between various service providers and are effectively bound to the services and prices determined by SAP.
In parallel with initiating proceedings, the Commission has already presented SAP with its preliminary assessment and its legal concerns. SAP now has the opportunity to submit commitments to the EU Commission to address the Commission's concerns.
The outcome of the proceedings against SAP may be of considerable relevance for every customer.
If SAP fails to persuade the Commission of the legality of its practices, it can choose to voluntarily alter them (for example, through a binding commitment) and potentially avoid a fine. Another option is for the EU Commission to require SAP to stop these practices and issue a fine for breaching the prohibition of abuse (Article 102 TFEU). Nevertheless, SAP has the option to appeal against this decision to the European Courts.
In both scenarios, the licensing process would need to be revised to provide customers with more flexibility and room for negotiation. Given the ongoing abuse investigations by the EU Commission, SAP customers should have some additional leeway in negotiations. Especially for SAP customers who have more licenses than they currently need due to these practices, requesting decommissioning agreements would help them avoid maintenance costs for unused software. Prior to switching to SAP's rental model ("SAP RISE"), it is important to carefully assess if the unused software is necessary for billing purposes.
In the event that the Commission imposes a fine, such a ruling would greatly simplify the process for customers to seek compensation from SAP for the harm caused by purchasing their maintenance services at inflated prices, or for paying for maintenance services for SAP software that is unused or obsolete. This is because a legally binding decision on the abuse would have a significant impact on future compensation claims. (However, claiming damages is also possible, where there is no formal finding of an infringement).
Even if it is still unclear when and what decision the Commission will take, SAP's customers should therefore take precautions of collecting contract documents and invoices (including from the past) that are necessary for the enforcement of claims for damages in order to be prepared in the event of a finding of abusive behavior by the Commission.
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