Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/39.141 — Fiat
Date: 2007-03-22
Institutions: European Commission
Subjects: access to information, after-sales service, competition law, exchange of information, general mechanical engineering, information, motor car, spare part

22.3.2007

EN

Official Journal of the European Union

C 66/21

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

(2007/C 66/09)

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 preli-
minary 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 Commis-
sion shall publish a concise summary of the case and the main
content of
Interested parties may submit
their observations within the time limit fixed by the Commis-
sion.

the commitments.

2. SUMMARY OF THE CASE

The present case relates to Fiat's provision of technical repair
information to independent repairers. The Commission's investi-
gation showed that Fiat might have failed to release certain cate-
gories 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, Fiat had, in the Commission's preli-
minary 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 Fiat 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 Fiat, containing the preli-
minary view that Fiat's agreements with its after-sales service
partners raised concerns as to their compatibility with Article
81(1) of the EC Treaty.

In essence, Fiat'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 Fiat's failure to
provide independent repairers with appropriate access to tech-
nical information. On the basis of the Commission's preliminary
analysis, such a practice might have contributed to a decline in

(1) OJ L 1, 4.1.2003, p. 1.
(2) OJ L 203, 1.8.2002, p. 30.

the market position of independent repairers, which could have
led to a shrinking market for independent spare parts wholesa-
lers, 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, Fiat'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 equip-
ment, 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 Fiat 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 opera-
tion 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 Fiat's authorised networks from competi-
tive pressure exercised by the independent repair sector.

3. THE MAIN CONTENT OF THE OFFERED COMMITMENTS

Fiat 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. What follows describes their main
elements.

3.1 Technical information to be provided

Information,

The principle determining the scope of the information to be
provided is that of non-discrimination between independent and
authorised repairers. In this light, Fiat will ensure that all Tech-
nical
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 Fiat is also made
available to independent repairers.

tools, equipment,

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Official Journal of the European Union

22.3.2007

all

‘Technical Information’ within the meaning of Article 4(2) of
Regulation (EC) No 1400/2002 includes
information
provided to authorised repairers for the repair or maintenance
of Fiat, Alfa Romeo and Lancia motor vehicles. Particular exam-
ples 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 Fiat, vehicle identification methods, parts cata-
logues, 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 peri-
odic updates thereof, and after-sales services for such tools.

The proposed commitments will bind Fiat and its connected
undertakings but will not be directly binding on independent
importers of Fiat's vehicle brands. In those Member States in
which Fiat distributes Fiat, Alfa Romeo and/or Lancia vehicles
via independent importers, Fiat has therefore agreed to make its
best efforts to contractually oblige these undertakings to supply
Fiat with any Technical
Information or language versions of
Technical
Information that they have provided to authorised
repairers in the Member State concerned. Fiat 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.

recalibrate (1) electronic devices, or

According to recital 26 of the Regulation, Fiat 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
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 Fiat 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

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

The following three categories of Technical Information are not
yet on the TI website, but Fiat has committed itself to place
them there by 31 December 2007:

— translations in local

Information
currently not in Fiat's possession, but to be provided by its
independent importers in the EU Member States concerned,

languages of Technical

— notices identifying repairs that may be carried out without

charge within the authorised repair network, and

— identification of

the Mediation Centres mentioned under

Section 3.4 of this Notice.

Fiat's access fee structure for the site will be based on the cost
of a yearly subscription to the full bundle of the CD-ROMs that
it provides to its authorised repairers; namely EUR 3 356, plus
EUR 65 for the parts catalogue and an additional monthly
subscription fee of EUR 134 for updates. However, in order to
respect the proportionality requirement laid down in the Regu-
lation, Fiat agrees to provide for a pro rata breakdown into
monthly, daily, and hourly time windows at a price for each
brand of EUR 3 per hour, EUR 22 per day and EUR 350 per
month. Fiat 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

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

Article 4(2) of the Regulation provides that technical informa-
tion 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

Fiat will
include on the TI website all Technical Information
relating to models launched after 1996, and will ensure that all

(1) I.e. to modify the original settings of an ECU in a way not recom-

mended by Fiat.

3.4 Dispute resolution

If an independent repairer or association of such repairers so
requests, Fiat commits itself to accept a mediation mechanism
for settling disputes relating to the provision of Technical Infor-
mation. The mediation will take place in the Member State
where the requesting party's registered seat is located under the
rules of a recognised local mediation centre. Mediation will not
prejudice any right to file an application with the competent
national court.

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Official Journal of the European Union

C 66/23

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 (1) to be binding. In accordance with Article 27(4)
of Regulation (EC) No 1/2003, the Commission invites inter-
ested 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
comp-infotech@ec.europa.eu, by fax (No (32-2) 296 29 11) or
by post, under reference number COMP/39.141 — Fiat, to the
following address:

to the Commission by e-mail

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. Legiti-
mate requests will be respected.

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