EN Official Journal of the European Union C 66/18

Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/39.140 — DaimlerChrysler

(2007/C 66/08)

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 DaimlerChrysler's provision of technical repair information for its Mercedes-Benz and Smart brands to independent repairers. The Commission's investigation showed that DaimlerChrysler might have failed to release certain categories of this 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, DaimlerChrysler had, in the Commission's preliminary assessment, still not put in place an effective system to allow independent repairers to have access to this technical repair information in an unbundled manner. Although DaimlerChrysler improved the accessibility of its technical information over the course of the Commission investigation, notably by setting up a website (‘the TI website’) in June 2005 designed for that purpose, 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 DaimlerChrysler, which contained the preliminary view that DaimlerChrysler's agreements with its Mercedes-Benz and Smart after-sales service partners raised concerns as to their compatibility with Article 81(1) of the EC Treaty.

In essence, these agreements require the members of the authorised Mercedes-Benz and Smart 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 DaimlerChrysler'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, DaimlerChrysler'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 DaimlerChrysler and its authorised repairers were 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 did 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 DaimlerChrysler's authorised networks from competitive pressure exercised by the independent repair sector.

3. THE MAIN CONTENT OF THE OFFERED COMMITMENTS

DaimlerChrysler 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 below and are published in English 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, DaimlerChrysler will ensure that all Technical Information, tools, equipment, software and training required for the repair and maintenance of its vehicles which is provided to authorised repairers and /or independent importers of its Mercedes-Benz and Smart brands in any EU Member State by or on behalf of DaimlerChrysler is also made available to independent repairers.

‘Technical Information ’within the meaning of Article 4(2) of Regulation (EC) No 1400/2002 includes all information provided to authorised repairers for the repair or maintenance of Mercedes-Benz and Smart 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 DaimlerChrysler, 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.

The proposed commitments will bind DaimlerChrysler and its connected undertakings but will not be directly binding on independent importers of the Mercedes-Benz and Smart brands.

DaimlerChrysler has therefore agreed that in those Member States in which DaimlerChrysler distributes Mercedes-Benz and/ or Smart vehicles via independent importers, it will make its best efforts to contractually oblige these undertakings to make available to independent repairers free of charge and in a non-discriminatory way through their national commercial websites any given piece of Technical Information or language version of such information that the importer in question has provided to authorised repairers in the Member State for which it has been appointed and that is not available to independent repairers on the TI website.

According to recital 26 of the Regulation, DaimlerChrysler is not obliged 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 a vehicle's performance. As with any exception under EU law, recital 26 is to be interpreted narrowly, and if DaimlerChrysler were to invoke this exception as a reason for withholding any Technical Information from independent repairers, it has committed itself to ensure that the information withheld is limited to that necessary to provide the protection described in recital 26, and that the lack of the information in question does not prevent independent repairers from carrying out operations other than those listed in recital 26, including work on devices such as engine management ECUs, 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

DaimlerChrysler 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. However, if certain items of Technical Information relating to models launched after 1996 or language versions thereof that DaimlerChrysler or its connected undertakings provides to authorised repairers in a given Member State are not available on the TI website, DaimlerChrysler shall be deemed to have complied with the commitments in this respect if it has made the items in question available without undue delay and free of charge to independent repairers on its commercial website in the Member State in question.

DaimlerChrysler will at all times ensure that the TI website may be easily located and provides an equivalent level of performance to the methods used for providing Technical Information to members of its authorised networks. When DaimlerChrysler or another undertaking acting on DaimlerChrysler's behalf makes a piece of Technical Information available to authorised repairers in a particular EU language, DaimlerChrysler will ensure that this language version of the information is placed on the TI website without undue delay.

DaimlerChrysler has set the yearly access fees for the TI website at EUR 1 254 (EUR 1 239 for access to the main section known as WIS net; the electronic parts catalogue net is free of charge except for a yearly contribution towards administrative expenses of EUR 15). However, in order to respect the proportionality requirement laid down in the Regulation, DaimlerChrysler agrees to provide for a pro rata breakdown for WIS net access into monthly, weekly, daily, and hourly time windows at a price of EUR 180, EUR 70, EUR 20, and EUR 4, respectively. DaimlerChrysler agrees to maintain this access fee structure, and not to increase fee levels above the average inflation rate within the EU.

3.3 Minimum standards principle

DaimlerChrysler'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 DaimlerChrysler is to provide to independent operators and/or might set out more favourable ways for such information to be provided.

3.4 Dispute resolution

If an independent repairer or association of such repairers so requests, DaimlerChrysler commits itself to accept arbitration for settling disputes relating to the provision of Technical Information. This arbitration shall be governed by the national rules of arbitration and the substantive law that DaimlerChrysler has contractually agreed upon with its authorised repairers in the Member State where the requesting party is located. DaimlerChrysler commits itself to provide information on these rules upon request. The arbitral tribunal shall consist of three arbitrators appointed in accordance with these Rules. 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 (4) 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/39.140 — DaimlerChrysler, 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 DaimlerChrysler.

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