EN Official Journal of the European Union C 66/27

Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/39.143 — Opel

(2007/C 66/11)

1. INTRODUCTION

According to Article 9 of Council Regulation (EC) No 1/2003 (1), in cases where the Commission intends to adopt a decision requiring that an infringement is brought to an end, and the undertakings concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment, the Commission may decide to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.

2. SUMMARY OF THE CASE

The present case relates to General Motors Europe's (GME) provision of Opel/Vauxhall-specific technical repair information to independent repairers. The Commission's investigation showed that GME might have failed to release certain categories of technical repair information well after the end of the transitional period provided for in Council Regulation (EC) No 1400/2002 (2). Moreover, at the time that the Commission's investigation was launched, GME had, in the Commission's preliminary assessment, still not put in place an effective system to allow independent repairers to have access to Opel/Vauxhall-specific technical repair information in an unbundled manner. Although GME improved the accessibility of its technical information over the course of the Commission investigation, the information made available to independent repairers seemed to be still incomplete.

In December 2006, the Commission opened proceedings, and addressed a preliminary assessment to GME, containing the preliminary view that GME's agreements with its after-sales service partners raised concerns as to their compatibility with Article 81(1) of the EC Treaty.

In essence, GME's service and parts distribution agreements require the members of its authorised networks to carry out a full range of brand-specific repair services, and foreclose firms who wish to offer a different and/ or more targeted service, as well as stand-alone spare parts wholesalers. The Commission was concerned that the possible negative effects stemming from such agreements could be strengthened by GME's failure to provide independent repairers with appropriate access to technical information. On the basis of the Commission's preliminary analysis, such a practice might have contributed to a decline in the market position of independent repairers, which could have led to a shrinking market for independent spare parts wholesalers, and might have caused considerable consumer harm in terms of a significant reduction in choice of spare parts, higher prices for repair services, a reduction in choice of repair outlets, potential safety issues, and a lack of access to innovative repair shops.

Moreover, GME's alleged failure to provide independent repairers with appropriate access to technical information appears to prevent the agreements with its after-sales service partners from benefiting from the exemption granted by Regulation (EC) No 1400/2002, since according to Article 4(2) of the regulation, the exemption granted therein does not apply where the supplier of motor vehicles refuses to give independent operators access to any technical information, diagnostic and other equipment, tools, including any relevant software, or training required for the repair and maintenance of these motor vehicles.

Finally, the Commission came to the preliminary view that in the context of lack of access to technical repair information, the agreements between GME and Opel/Vauxhall authorised repairers are unlikely to benefit from the provision of Article 81(3). In essence, the efficiency gains that might be expected to stem from the operation of a selected network of authorised repairers do not appear to offset the significant negative effects on competition resulting from the currently inadequate access to brand-specific technical repair information given to independent operators and the ensuing protection of Opel/Vauxhall authorised networks from competitive pressure exercised by the independent repair sector.

3. THE MAIN CONTENT OF THE OFFERED COMMITMENTS

GME has offered commitments to the Commission in order to meet the competition concerns addressed in the preliminary assessment. It proposes that these commitments should remain in force until 31 May, 2010. The commitments are briefly summarised in what follows and published in English version on the website of the Directorate-General for Competition: http://ec.europa.eu/comm/competition/index_en.html.

3.1 Technical information to be provided

The principle determining the scope of the information to be provided is that of non-discrimination between independent and authorised repairers. In this light, GME will ensure that all Technical Information, tools, equipment, software and training required for the repair and maintenance of its Opel/Vauxhall vehicles which is provided to authorised repairers in any EU Member State by or on behalf of GME is also made available to independent repairers.

‘Technical Information ’within the meaning of Article 4(2) of Regulation (EC) 1400/2002 includes all information provided to Opel/Vauxhall authorised repairers for the repair or maintenance of Opel/Vauxhall motor vehicles. Particular examples include software, fault codes and other parameters, together with updates, which are required to work on electronic control units (ECUs) with a view to introducing or restoring settings recommended by GME, vehicle identification methods, parts catalogues, working solutions resulting from practical experience and relating to problems typically affecting a given model or batch, and recall notices as well as other notices identifying repairs that may be carried out without charge within the authorised repair network.

Access to tools includes access to electronic diagnostic and other repair tools, together with related software, including periodic updates thereof, and after-sales services for such tools.

Recital 26 of the Regulation makes it plain that Article 4(2) does not require GME to provide independent repairers with Technical Information that would enable a third party to bypass or disarm on-board anti-theft devices and/or recalibrate (3) electronic devices, or to tamper with devices which limit the speed or other performance-related parameters of a motor vehicle. Nevertheless, GME commits itself to allow independent repairers unrestricted access to information of these types, provided that they obtain the relevant GME Training Certification (4). Such certification will be issued to independent repairers without delay subject to the completion of training.

If, in the future, GME were to invoke the exception in recital 26 as a reason for withholding access to certain items of technical information to independent repairers, it would be incumbent upon it to ensure that the information so withheld was limited to that necessary to provide the protection described in recital 26, and that the lack of the information in question did not prevent independent repairers from carrying out operations other than those listed in recital 26, including work on devices such as engine management ECU, airbags, seatbelt pre-tensioners, or central locking elements.

3.2 Media

Article 4(2) of the Regulation provides that technical information must be made available in a way that is proportionate to independent repairers' needs. This implies both unbundling of information and pricing that takes account of the extent to which independent repairers use the information

GME will include on the TI website all Technical Information relating to models launched after 1996, and will ensure that all updated Technical Information is on the TI website or on any successor site at all times. Moreover, GME will at all times ensure that the website may be easily located and provides an equivalent level of performance to the methods used for providing Technical Information to members of Opel/Vauxhall authorised network. When GME or another undertaking acting on GME's behalf makes a piece of Technical Information available to authorised repairers in a particular EU language, GME will ensure that this language version of the information is placed on the TI website without delay.

As regards the Electronic Parts Catalogue, which is currently not available on the TI website GME will be deemed to comply with the commitments if it places this information on the TI website by 31 December 2007. As a short term solution, the Catalogue will be available through GME Call Centre Services, which will on demand and without delay provide independent repairers with the requested pages by fax in any of the languages in which the Catalogue is made available to authorised repairers. This service will be available for EUR 1 per page (+ 3,9 % handling fee), and local call tariffs will apply.

As regards wiring diagrams, GME will place on the TI website all such that have been generated in or converted into digital format for use by its Opel/Vauxhall Authorised Repairers in the EU. The remaining diagrams, which relate to certain models (5) launched after 1 January 1997 and which do not exist in digital format, shall be available to independent repairers through GME Call Centre Services. Such Call Centre Services will operate in all languages required to avoid direct or indirect discrimination between independent and Opel/Vauxhall authorised repairers, taking into account the conditions at which such authorised repairers obtain access to wiring diagrams. The wiring diagrams will be provided without delay by fax in the smallest packages that the average independent repairer would need to carry out a repair job and on the same conditions as they are provided to Opel/Vauxhall Authorised Repairers. GME commits itself to maintain, during the validity of the commitments, the conditions currently applicable for these non-digitalised wiring diagrams.

As regards access to the TI website, GME agrees to provide for a pro rata breakdown into hourly, daily, weekly, monthly and yearly time windows at a price of respectively EUR 4, EUR 30, EUR 100, EUR 300 and EUR 3 700. For initial access to the TI website, a one-time registration fee of EUR 15 will be charged + 3,9 % handling fee. Tech1/Tech2 SWDL (Diagnostic Tester Software Download) will be available through the annual subscription to the TI website, or by paying a stand-alone monthly subscription fee of EUR 100. GME will maintain this access fee structure, and will not increase fee levels above the average inflation rate within the EU.

3.3 Minimum standards principle

GME's commitments are without prejudice to any current or future requirement established by Community or national law which might extend the scope of the technical information that GME is to provide to independent operators and/or might set out more favourable ways for such information to be provided.

3.4 Dispute resolution

In order to address any complaint raised by an independent repairer concerning access to Technical Information, GME will put in place a GME ‘Ombudsman’. Upon receipt of an independent repairer's complaint the GME ‘Ombudsman ’shall, within a maximum of three weeks from receiving the complete file, provide the independent repairer with a GME Response. In case a complainant does not accept the GME Response, GME commits to accept an arbitration mechanism for resolving disputes relating to the provision of Technical Information whereby each party to such a dispute may nominate one expert, who may then jointly decide on the appointment of a third.

The arbitration shall take place in the Member State where the requesting party's registered seat is located. The language of the arbitration proceedings will be the official language at the place of arbitration. Arbitration will not prejudice any right to file an application with the competent national court.

4. INVITATION TO MAKE COMMENTS

The Commission intends, subject to market testing, to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring the commitments summarised above and published on the Internet on the web-site of the Directorate-General for Competition (6) to be binding. In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. These observations must reach the Commission not later than one month following the date of this publication. Observations can be sent to the Commission by e-mail to comp-infotech@ec.europa.eu, by fax (No (32-2) 296 29 11) or by post, under reference number COMP/39.143 — Opel, to the following address:

European Commission Directorate-General for Competition Antitrust Registry J-70 B-1049 Brussels

In the subsequent course of the proceedings it may become necessary or appropriate to make available a summary of the comments following the publication of this notice to the parties offering the commitments. In this respect we kindly ask you to identify any confidential information or business secrets. Legitimate requests will be respected.

(1) OJ L 1, 4.1.2003, p. 1.

(2) OJ L 203, 1.8.2002, p. 30.

(3) I.e. to modify the original settings of an ECU in a way not recommended by GME.

(4) Fees for the Training Certification will be equivalent for authorised and independent repairers and GME commits itself to keep them at the same level during the validity of the commitments. The training will comprise (i) two days instructor-based training (cost of between EUR 115 and EUR 230 per day depending upon the national market) and (ii) a one day Tech2 web-based training (cost of between EUR 30 and EUR 50 per day, again depending on the national market in question). The training will be provided by the GM Academy.

(5) Of these models only two (Agila and Movano) are still in production and for both wiring diagrams relating to their variants launched from 2002 are available on the TI website. The only models for which the diagrams are available only through GME Call Centre Services (Arena and Sintra) stopped being produced in 1999 and 2001. For the remaining models, the TI website contains wiring diagrams for variants launched from 2002 (Astra-G, Frontera-B, Zafira-A) or from 2003 (Speedster).

(6) http://ec.europa.eu/comm/competition/index_en.html