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

C 66/24

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Official Journal of the European Union

22.3.2007

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 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 time that

The present case relates to Toyota Motor Eorope NV/SA's
(‘Toyota’) provision of technical repair information to indepen-
dent repairers. The Commission's investigation showed that
Toyota might have failed to release certain categories of tech-
nical repair information well after the end of the transitional
period provided for in Regulation (EC) No 1400/2002 (2). More-
over, at
the Commission's investigation was
launched, Toyota had, in the Commission's preliminary assess-
ment, still not put in place an effective system to allow indepen-
dent repairers to have access to technical repair information in
an unbundled manner. Although Toyota improved the accessi-
bility of
the
Commission investigation, notably by increasing language
coverage of the information available on its technical informa-
tion 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.

information over

the course of

its technical

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 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.

to technical

Moreover, Toyota's alleged failure to provide independent
repairers with appropriate access
information
appears to prevent the agreements with its after-sales service
partners from benefiting from the exemption granted by Regu-
lation (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
information, diagnostic and
operators access to any technical
including any relevant software, or
other equipment,
training required for the repair and maintenance of these motor
vehicles.

tools,

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 unli-
kely 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
for Competition:
the Directorate-General
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.

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Official Journal of the European Union

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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 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 solu-
tions
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.

companies’

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
(‘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 undertak-
Information or
ings to supply Toyota with any Technical
language versions of Technical
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.

Information that

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 (1) 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 inde-
pendent 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 infor-
mation 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.

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 Regu-
lation, Toyota agrees to provide for a pro rata breakdown into
monthly, weekly, daily,
two-hourly
four-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.

three-hourly,

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.

3.2 Media

3.4 Dispute resolution

Article 4(2) of the Regulation provides that technical informa-
tion must be made available in a way that is proportionate to

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

mended by Toyota.

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
established in the European Union
independent
regarding access to Technical Information:

repairers

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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 infor-
mation 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 agree-
ment 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 arbi-
trators 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 proceed-
ings 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 (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/39.142 — Toyota, 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