1. Introduction

Manufacturing Execution Systems (MES) are industrial software platforms that monitor, coordinate, and document production activities in factories. They connect enterprise resource planning (ERP) systems with shop-floor operations, machinery, sensors, quality-control processes, inventory, and industrial automation systems.

In Morocco, MES competition issues may arise in automotive manufacturing, aerospace components, food processing, pharmaceuticals, textiles, chemicals, and other industrial sectors undergoing digital transformation.

A competition concern arises when an MES supplier acquires or abuses market power to prevent manufacturers from using competing software, independent maintenance providers, alternative industrial equipment, or third-party data-analysis tools.

The principal legal framework is Morocco's Law No. 104-12 on Freedom of Prices and Competition, read alongside Law No. 20-13 on the Competition Council, as amended. The precise legal assessment depends on the conduct, the relevant market, and the applicable statutory provisions.

The central question is not whether an MES supplier is large or technologically advanced. It is whether the supplier possesses substantial market power and engages in conduct that unlawfully restricts competition.

2. Nature of manufacturing execution systems dominance

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A. Software platform dominance

A supplier may control a substantial share of MES installations for particular industries, especially where its software has become the standard for production scheduling, traceability, or regulatory documentation.

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B. Technical lock-in

High migration costs, proprietary interfaces, customized workflows, and dependence on certified integrators may make switching suppliers difficult.

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C. Control over production data

Exclusive control over historical production records, machine interfaces, or data-export functionality may prevent customers and rivals from accessing information needed to compete.

Dominance can arise from technological advantages, network effects, intellectual property, accumulated customer data, interoperability barriers, switching costs, or the absence of commercially viable alternatives. None of these factors, standing alone, establishes an infringement.

3. Legal framework governing MES dominance in Morocco

A. Law No. 104-12 on Freedom of Prices and Competition

Morocco's competition legislation, as amended by Law No. 40-21, provides the principal rules for assessing abuse of dominance and anticompetitive agreements.

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Article 7: Abuse of dominant position and economic dependence

Article 7 prohibits the abusive exploitation of a dominant position in the domestic market or a substantial part of it, as well as the abusive exploitation of a customer's or supplier's economic dependence where no equivalent alternative exists.

The provision is particularly relevant to MES because a factory may depend on one supplier for its production software, machine interfaces, updates, technical support, or access to manufacturing records.

Potentially problematic conduct includes:

Refusing access to essential interfaces without objective justification.

Tying MES licences to unrelated industrial software.

Applying discriminatory commercial conditions to competing integrators.

Terminating established commercial relationships because a customer refuses unjustified conditions.

Using technical restrictions to prevent customers from migrating to competing MES products.

The precise legal test must be applied to the facts; technical restrictions and exclusive arrangements are not automatically unlawful.

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Article 6: Anticompetitive agreements and concerted practices

Agreements between competing MES providers, or arrangements between suppliers and distributors, may raise concerns if they restrict competition. Examples include market allocation, coordinated pricing, bid-rigging in industrial software tenders, and arrangements to exclude rival integrators.

Merger control

The merger-control provisions, including Articles 12 and 16, are relevant where an MES supplier acquires a rival, an industrial automation company, a specialist integration business, or a provider of complementary software. A transaction may warrant scrutiny if it creates or strengthens dominance or creates economic dependence among customers or suppliers. Notification obligations must be assessed against the applicable thresholds and rules.

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B. Role of the Moroccan Competition Council

The Moroccan Competition Council can investigate anticompetitive practices and review qualifying concentrations under the applicable legislation. Depending on the proceedings and statutory requirements, remedies may include injunctions, conditions, or other legally available measures.

For an MES dispute, relevant evidence would include:

Market shares and competing suppliers.

Contractual restrictions and renewal terms.

Software migration costs.

Technical documentation and interoperability records.

Customer complaints and internal business communications.

Evidence of exclusionary effects on rival suppliers.

4. Market definition and proof of dominance

Market definition is especially important because MES products vary significantly by function, industry, and compatibility.

A. Relevant product market

Possible market definitions include:

General-purpose manufacturing execution software.

MES for regulated pharmaceutical production.

MES for automotive assembly and component traceability.

MES integrated with a particular industrial automation ecosystem.

MES maintenance, upgrades, and technical support.

Interfaces, data-export tools, or migration services for installed MES systems.

The regulator should assess whether customers can realistically substitute other products without excessive expense, operational risk, or disruption.

A specialised MES may face competition from alternative software in theory but little competitive pressure in practice if switching would require extensive factory reconfiguration and validation.

B. Relevant geographic market

The geographic market may be Moroccan, regional, or broader, depending on the evidence.

Factors include the availability of international suppliers, local implementation and support, language requirements, cybersecurity obligations, data-handling rules, and the ability of Moroccan manufacturers to purchase and implement foreign software.

C. Indicators of dominance

No single indicator is conclusive. Dominance must be established using the relevant market and the evidence of actual competitive constraints.

5. Principal forms of potentially abusive MES conduct

1. Tying and bundling

A dominant supplier may require customers to purchase its MES together with proprietary analytics, maintenance, scheduling, or cloud services. The concern is strongest when the products could be purchased separately and the arrangement forecloses competing suppliers.

Example: A factory cannot renew its MES licence unless it also purchases the supplier's industrial analytics package.

2. Refusal of interoperability

A supplier may refuse to provide necessary technical interfaces or deliberately degrade access for competing software. An infringement would depend on the importance of the interface, the availability of alternatives, the justification for refusal, and the likely effect on competition.

3. Data portability restrictions

A supplier may impose excessive charges or technical barriers for exporting production histories, quality records, machine events, and configuration data.

Such conduct can entrench lock-in, although legitimate protection of trade secrets, cybersecurity, and personal data must also be considered.

4. Exclusive dealing

Long-term contracts or rebates may be problematic if they effectively prevent manufacturers from using rival MES providers or deny competitors access to an important share of demand.

5. Discriminatory treatment of integrators

A supplier may offer its affiliated implementation business better interface access, support, pricing, or technical documentation than independent integrators, potentially disadvantaging competing services.

6. Predatory pricing

A dominant supplier may price MES licences below an appropriate measure of cost as part of a strategy to exclude rivals and later recover its losses. Low introductory prices, discounts, or efficient pricing alone do not establish predation.

6. Case laws relevant to MES dominance — at least 6 cases

Important qualification: The following are established foreign competition-law authorities used by analogy. They are not presented as Moroccan MES judgments. They help explain principles that may be relevant when applying Moroccan Law No. 104-12. No claim is made that the Moroccan Competition Council has decided these exact MES scenarios.

Case 1: Microsoft Corp. v. Commission (2007)

Citation: Case T-201/04, General Court, judgment of 17 September 2007.

Facts and issue: The European Commission challenged Microsoft's refusal to provide interoperability information to competing work-group server operating systems and its tying of Windows Media Player to Windows.

Legal principle: A dominant software supplier's refusal to provide interoperability information can constitute an abuse in exceptional circumstances. The tying of products can also be abusive where the relevant legal conditions are satisfied.

Application to MES in Morocco: If a dominant MES provider withholds essential interface specifications from rival industrial software vendors, preventing them from developing viable competing products, the conduct merits scrutiny. Similarly, conditioning MES access on the purchase of an additional proprietary module may raise tying concerns.

Qualification: Not every refusal to license intellectual property is unlawful. The legal test is demanding and must be applied to the facts.

Case 2: Google Android

Citation: Case AT.40099, European Commission decision of 18 July 2018; General Court, Case T-604/18, judgment of 14 September 2022.

Facts and issue: The proceedings concerned restrictions imposed by Google in connection with Android, including arrangements involving application pre-installation, exclusivity incentives, and compatibility requirements. The General Court reviewed the Commission's decision and the infringement findings, with certain adjustments to the penalty.

Legal principle: A dominant platform's contractual restrictions and product-bundling arrangements may be abusive when they foreclose competing products and weaken competition.

Application to MES in Morocco: A dominant MES supplier might require manufacturers to adopt its proprietary automation stack, prevent competing modules from operating within the system, or grant discounts conditional on exclusive use.

The authority would need to examine the actual restrictions, market power, foreclosure effects, and objective justifications.

Case 3: IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG (2004)

Citation: Case C-418/01, Court of Justice of the European Union, judgment of 29 April 2004.

Facts and issue: IMS Health concerned refusal to license a copyright-protected pharmaceutical sales-data structure used by competing providers.

Legal principle: A refusal to license intellectual property can exceptionally constitute an abuse where stringent conditions are met, including indispensability, exclusion of competition in a secondary market, and the absence of objective justification. The refusal must also prevent the emergence of a new product for which there is potential consumer demand under the applicable test.

Application to MES in Morocco: A supplier may control a proprietary production-data format or interface. If competing MES migration services or analytics products cannot realistically operate without access, the refusal may warrant investigation.

However, the mere existence of proprietary software or an intellectual-property right does not automatically create a duty to license it.

Case 4: Commercial Solvents Corp. v. Commission (1974)

Citation: Joined Cases 6/73 and 7/73, Court of Justice of the European Communities, judgment of 6 March 1974.

Facts and issue: The case concerned the refusal of a dominant supplier of a raw material to continue supplying a customer that competed in a downstream market.

Legal principle: A dominant undertaking's refusal to supply can be abusive in particular circumstances when it eliminates a customer that competes in a downstream market and thereby threatens competition.

Application to MES in Morocco: Suppose an MES supplier controls an indispensable interface or service needed by independent industrial integrators and refuses access to drive them out of downstream implementation or maintenance markets.

The authority would examine whether the input is genuinely necessary, whether viable alternatives exist, and whether the refusal threatens competition rather than merely harming an individual rival.

Case 5: United Brands Co. v. Commission (1978)

Citation: Case 27/76, Court of Justice of the European Communities, judgment of 14 February 1978.

Facts and issue: The case involved a dominant banana supplier and allegations including discriminatory conduct, unfair commercial practices, and refusal to supply certain distributors.

Legal principle: Dominance does not exempt a company from competition rules. A dominant undertaking may bear a special responsibility not to impair effective competition through abusive conduct.

Application to MES in Morocco: A dominant supplier may be justified in offering different prices or service conditions where there are objective cost or risk differences. However, unjustified discrimination between similarly situated manufacturers or integrators could warrant scrutiny if it distorts competition.

Case 6: Slovak Telekom a.s. v. Commission (2021)

Citation: Case C-165/19 P, Court of Justice of the European Union, judgment of 25 March 2021.

Facts and issue: The case concerned alleged abusive conduct by a dominant telecommunications operator relating to access to its network infrastructure.

Legal principle: The assessment of exclusionary conduct involving access to infrastructure must account for the applicable legal test and the specific circumstances. The Court clarified the relationship between refusal-to-supply principles and other forms of exclusionary conduct.

Application to MES in Morocco: A dominant MES provider that controls a critical interface or technical infrastructure may face scrutiny if its access conditions disadvantage competing software providers. The analysis should distinguish a genuine refusal to supply from discriminatory access conditions or other exclusionary practices.

The case does not establish that all MES interfaces must be opened to competitors.

Case 7: Michelin v. Commission (1983)

Citation: Case 322/81, Court of Justice of the European Communities, judgment of 9 November 1983.

Facts and issue: The case concerned Michelin's commercial arrangements with tyre distributors, including a rebate system operated by a dominant supplier.

Legal principle: Rebate systems used by dominant undertakings can be abusive when their structure creates loyalty-inducing effects that restrict customers' ability or incentive to source from competitors.

Application to MES in Morocco: A dominant MES supplier may offer substantial discounts to factories that commit to using its software exclusively across all production facilities or for extended periods.

The authority should examine the rebate structure, duration, customer coverage, switching opportunities, and the ability of equally efficient rivals to compete.

Case 8: Intel Corp. v. Commission (2024)

Citation: Case C-240/22 P, Court of Justice of the European Union, judgment of 24 October 2024.

Facts and issue: The case concerned Intel's rebate arrangements and the European Commission's assessment of their exclusionary effects.

Legal principle: Where the dominant undertaking submits evidence that its conduct was not capable of restricting competition, the authority must assess the relevant evidence in accordance with the applicable legal standard. The case reinforces the importance of a rigorous effects-based assessment of conditional rebates.

Application to MES in Morocco: Discounts for large-scale MES deployment should not be presumed unlawful. The assessment should consider whether the arrangements are capable of foreclosing competing suppliers, the proportion of demand covered, their duration, and the economic circumstances of the market.

Comparative summary

7. Application to a hypothetical Moroccan MES market

Assume that a software provider supplies MES solutions to several large Moroccan automotive-component factories. Its software is deeply integrated with machinery, ERP systems, and production traceability tools.

The provider introduces the following practices:

It refuses to export production histories in a usable format unless customers pay substantial additional fees.

It requires customers to purchase its proprietary analytics product with every MES renewal.

It provides independent integrators with incomplete interface documentation.

It grants significant discounts to factories that commit to exclusive use for five years.

Legal analysis

First, dominance must be established. The regulator would assess whether the provider faces effective competition from alternative MES vendors, including foreign suppliers, and whether customers can switch without prohibitive cost or risk.

Second, each practice must be examined separately. Data-export charges may be commercially justified in some circumstances, but disproportionate restrictions may reinforce lock-in. Bundling may be unlawful if it forecloses rival analytics providers. Unequal interface access may be abusive if it lacks objective justification and impairs competition. Exclusive discounts require an assessment of their actual or likely foreclosure effects.

Third, efficiencies must be considered. The provider may argue that integration reduces cybersecurity risks, ensures system reliability, protects intellectual property, or lowers support costs. Those claims should be evaluated against the restrictions imposed and whether less restrictive alternatives are feasible.

Fourth, consumer and industrial effects must be assessed. Relevant effects include higher software prices, reduced choice, slower innovation, greater dependence on one supplier, and increased long-term maintenance costs for Moroccan manufacturers.

A complaint would be stronger if it established both the supplier's market power and a credible connection between the challenged practices and harm to competition.

8. Evidence and enforcement strategy

A manufacturer or competing integrator preparing a complaint should assemble the following evidence:

Market evidence: MES market shares, tender results, competing suppliers, and customer switching patterns.

Contract evidence: Exclusivity clauses, renewal conditions, bundled pricing, rebates, and termination provisions.

Technical evidence: API documentation, export restrictions, compatibility tests, and migration assessments.

Economic evidence: Price comparisons, implementation costs, foreclosure analysis, and estimated losses attributable to exclusionary conduct.

Internal evidence: Communications showing the commercial rationale for restrictions and their expected effects on competing suppliers.

Efficiency evidence: Cybersecurity, safety, intellectual-property, and reliability justifications, including whether alternatives could achieve the same goals with less restrictive measures.

Under Morocco's Law No. 104-12, the Competition Council's powers and procedures must be applied in accordance with the applicable statutory requirements. Article 35 provides for conservatory measures where the statutory conditions for serious and immediate harm are met.

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9. Potential remedies

Depending on the infringement established and the authority's statutory powers, possible remedial measures may include:

Ending unlawful exclusivity or tying arrangements.

Revising discriminatory access or commercial conditions.

Providing reasonable, technically feasible interoperability or data-export arrangements where legally justified.

Removing contractual barriers that unlawfully prevent switching.

Modifying commercial agreements that facilitate abusive conduct.

Imposing applicable statutory sanctions and monitoring compliance.

Remedies should be proportionate to the infringement. Competition law does not generally require a supplier to disclose all source code, license every intellectual-property right, or provide free technical support.

10. Conclusion

Manufacturing Execution Systems dominance presents a significant competition-law issue when control over essential industrial software, data, or interfaces becomes a means of excluding rival suppliers and restricting customers' choices.

In Morocco, Article 7 of Law No. 104-12 provides the central statutory basis for assessing abuse of dominant position and abusive economic dependence. Merger control and the rules on anticompetitive agreements may also apply where the facts warrant them.

The foreign cases discussed above supply useful comparative principles on interoperability, tying, refusal to supply, discriminatory treatment, and loyalty-inducing rebates. They are persuasive analytical references rather than substitutes for Moroccan law or evidence of Moroccan precedent.

The decisive distinction is between legitimate technological leadership and the abusive use of market power to suppress competition. A successful analysis must establish the relevant market, demonstrate dominance, identify the challenged conduct, evaluate its competitive effects, and consider objective justifications and proportionate remedies.