Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/39.140 — DaimlerChrysler
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 66/18

EN

Official Journal of the European Union

22.3.2007

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION
POLICY

COMMISSION

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 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.

these agreements require the members of

In essence,
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
information. On the basis of the Commission's
to technical
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,
caused considerable
and might have
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.

2. SUMMARY OF THE CASE

repairers. The Commission's

The present case relates to DaimlerChrysler's provision of tech-
nical repair information for its Mercedes-Benz and Smart brands
to independent
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 Commis-
sion'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
information in an unbundled manner.
this technical repair
Although DaimlerChrysler improved the accessibility of its tech-
nical information over the course of the Commission investiga-
tion, 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 agree-
ments with its Mercedes-Benz and Smart after-sales service part-
ners raised concerns as to their compatibility with Article 81(1)
of the EC Treaty.

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

Moreover, DaimlerChrysler's alleged failure to provide indepen-
dent 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 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
other equipment,
including any relevant software, or
training required for the repair and maintenance of these motor
vehicles.

tools,

its

and

Finally, the Commission came to the preliminary view that in
the context of lack of access to technical repair information, the
agreements between DaimlerChrysler
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 indepen-
dent operators and the ensuing protection of DaimlerChrysler's
authorised networks from competitive pressure exercised by the
independent repair sector.

22.3.2007

EN

Official Journal of the European Union

C 66/19

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.

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 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
identification
recommended
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.

by DaimlerChrysler,

vehicle

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

in those Member
DaimlerChrysler has therefore agreed that
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
recalibrate (1) electronic
on-board anti-theft devices and/or
devices, or to tamper with devices which limit a vehicle's perfor-
mance. 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 manage-
ment ECUs, airbags, seatbelt pre-tensioners, or central locking
elements.

3.2 Media

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

include on the TI website all Technical
DaimlerChrysler will
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, Daim-
lerChrysler shall be deemed to have complied with the commit-
ments in this respect if it has made the items in question avail-
able 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 perfor-
mance 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 propor-
tionality requirement
laid down in the Regulation, Daimler-
Chrysler 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.

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

mended by DaimlerChrysler.

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Official Journal of the European Union

22.3.2007

3.3 Minimum standards principle

4. INVITATION TO MAKE COMMENTS

DaimlerChrysler's commitments are without prejudice to any
current or future requirement established by Community or
law which might extend the scope of the technical
national
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 Infor-
mation. 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. Daimler-
Chrysler commits itself to provide information on these rules
upon request. The arbitral tribunal shall consist of three arbitra-
tors appointed in accordance with these Rules. Arbitration will
not prejudice any right to file an application with the competent
national court.

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/39.140 — Daimler-
Chrysler, 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