EN Official Journal of the European Union C 66/24

Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/39.142 — Toyota

(2007/C 66/10)

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 Toyota Motor Eorope NV/SA's (‘Toyota’) provision of technical repair information to independent repairers. The Commission's investigation showed that Toyota might have failed to release certain categories of technical repair information well after the end of the transitional period provided for in Regulation (EC) No 1400/2002 (2). Moreover, at the time that the Commission's investigation was launched, Toyota had, in the Commission's preliminary assessment, still not put in place an effective system to allow independent repairers to have access to technical repair information in an unbundled manner. Although Toyota improved the accessibility of its technical information over the course of the Commission investigation, notably by increasing language coverage of the information available on its technical information website known as TechDoc website (‘the TI website’) and by increasing model range covered by this website, 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 Toyota, containing the preliminary view that Toyota's agreements with its after-sales service partners raised concerns as to their compatibility with Article 81(1) of the EC Treaty.

In essence, Toyota'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 Toyota'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, Toyota'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 Toyota and its 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 Toyota's authorised networks from competitive pressure exercised by the independent repair sector.

3. THE MAIN CONTENT OF THE OFFERED COMMITMENTS

Toyota 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, Toyota 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 in any EU Member State by or on behalf of Toyota 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 Toyota 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 Toyota, 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 Toyota and its connected undertakings but will not be directly binding on independent importers of Toyota's vehicle brands, known as ‘non-affiliated national marketing and sales companies ’(‘non affiliated NMSCs’). In those Member States in which Toyota distributes its vehicles via non affiliated NMSCs, Toyota has therefore agreed to make its best efforts to contractually oblige these undertakings to supply Toyota with any Technical Information or language versions of Technical Information that they have provided to authorised repairers in the Member State concerned. Toyota commits itself to place this Technical Information or language versions on its TI website without delay, in accordance with the principles set out in Section 3.2 of this Notice.

According to recital 26 of the Regulation, Toyota 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 Toyota 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

Toyota will include on the TI website all Technical Information relating to models launched as of 1 January 1997, and will ensure that all updated Technical Information is on the TI website or on any successor site at all times. Moreover, Toyota 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 its authorised networks. When Toyota or another undertaking acting on Toyota's behalf makes a piece of Technical Information available to authorised repairers in a particular EU language, Toyota will ensure that this language version of the information is placed on the TI website without delay.

As regards technical information concerning models launched by Toyota as of 1 January 1997 and prior to 1 January 2000, which is currently not available on the TI website, Toyota has committed itself to place it there by 31 December 2007.

Toyota's access fee structure for the site will be based on the cost that the authorised repairers incur for a yearly subscription to the Toyota intranet, namely EUR 2 400. However, in order to respect the proportionality requirement laid down in the Regulation, Toyota agrees to provide for a pro rata breakdown into monthly, weekly, daily, four-hourly, three-hourly, two-hourly and hourly time windows at a price of EUR 3 per hour, EUR 6 per two hours, EUR 9 per three hours, EUR 12 per four hours, EUR 16 per day, EUR 72 per week and EUR 240 per month. Toyota 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

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

3.4 Dispute resolution

Toyota commits itself to implement the following complaint handling procedure, which may be applied to deal with any complaint issued by an independent repairer or association of independent repairers established in the European Union regarding access to Technical Information:

Following initial notification, the national marketing and sales company (‘NMSC’) will first handle any complaint at its level, by the appointment of a complaint handler. Such complaint handler will investigate the complaint, provide additional information or explanation and/or propose a solution to the complainant. If the complaint handler and the complainant fail to reach an agreement or settlement regarding then complaint, the complaint handler shall promptly refer the complaint to the helpdesk facility set up by Toyota, except if the absence of agreement or settlement is the result of a lack of responsiveness from the independent repairer or association of independent repairers. Toyota will then investigate the matter and either confirm the position of the complaint handler or propose an alternative solution. In the event that Toyota and the complainant fail to reach an agreement or settlement regarding the complaint, Toyota commits itself to accept arbitration. In any event, the complainant may request such arbitration 20 business days after the initial notification of its complaint to an NMSC.

This arbitration will be governed by the respective national rules of arbitration, and the arbitral tribunal will consist of three arbitrators appointed in accordance with these rules. The place of arbitration will be in the Member State where the complainant's registered seat is located. The language of the arbitral proceedings shall 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 (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/39.142 — Toyota, 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 Toyota.

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