Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/39.143 — Opel
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 66/27

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

(2007/C 66/11)

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

repairers. The Commission's

The present case relates to General Motors Europe's (GME)
provision of Opel/Vauxhall-specific technical repair information
to independent
investigation
showed that GME might have failed to release certain categories
of technical repair information well after the end of the transi-
tional period provided for
in Council Regulation (EC) No
1400/2002 (2). Moreover, at the time that the Commission's
investigation was launched, GME had, in the Commission's preli-
minary assessment, still not put in place an effective system to
allow independent repairers to have access to Opel/Vauxhall-
specific technical repair information in an unbundled manner.
Although GME improved the accessibility of its technical infor-
mation over the course of the Commission investigation, 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 GME, containing the
preliminary view that GME's agreements with its after-sales
service partners raised concerns as to their compatibility with
Article 81(1) of the EC Treaty.

In essence, GME'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 GME'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
the market position of independent repairers, which could have

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

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, GME'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.

and Opel/Vauxhall

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

3. THE MAIN CONTENT OF THE OFFERED COMMITMENTS

GME 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

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, GME will ensure that all Tech-
nical
software and training
required for the repair and maintenance of its Opel/Vauxhall
vehicles which is provided to authorised repairers in any EU
Member State by or on behalf of GME is also made available to
independent repairers.

tools, equipment,

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Official Journal of the European Union

22.3.2007

fault codes and other parameters,

‘Technical Information’ within the meaning of Article 4(2) of
Regulation (EC) 1400/2002 includes all information provided to
Opel/Vauxhall authorised repairers for the repair or maintenance
of Opel/Vauxhall motor vehicles. Particular examples include
software,
together with
updates, which are required to work on electronic control units
(ECUs) with a view to introducing or restoring settings recom-
mended by GME, vehicle identification methods, parts catalo-
gues, 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.

Recital 26 of the Regulation makes it plain that Article 4(2)
does not require GME 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) elec-
tronic devices, or to tamper with devices which limit the speed
or other performance-related parameters of a motor vehicle.
Nevertheless, GME commits itself to allow independent repairers
unrestricted access to information of these types, provided that
they obtain the relevant GME Training Certification (2). Such
certification will be issued to independent repairers without
delay subject to the completion of training.

If, in the future, GME were to invoke the exception in recital 26
as a reason for withholding access to certain items of technical
information to independent repairers,
it would be incumbent
upon it to ensure that the information so withheld was limited
to that necessary to provide the protection described in recital
26, and that the lack of the information in question did not
independent repairers from carrying out operations
prevent
other than those listed in recital 26, including work on devices
such as
seatbelt pre-
engine management ECU,
tensioners, or central locking elements.

airbags,

3.2 Media

successor site at all times. Moreover, GME 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 Opel/Vauxhall
authorised network. When GME or another undertaking acting
on GME's behalf makes a piece of Technical Information avail-
able to authorised repairers in a particular EU language, GME
will ensure that this language version of the information is
placed on the TI website without delay.

As regards the Electronic Parts Catalogue, which is currently not
available on the TI website GME will be deemed to comply with
the commitments if it places this information on the TI website
by 31 December 2007. As a short term solution, the Catalogue
will be available through GME Call Centre Services, which will
on demand and without delay provide independent repairers
with the requested pages by fax in any of the languages in
which the Catalogue is made available to authorised repairers.
This service will be available for EUR 1 per page (+ 3,9 % hand-
ling fee), and local call tariffs will apply.

As regards wiring diagrams, GME will place on the TI website
all such that have been generated in or converted into digital
format for use by its Opel/Vauxhall Authorised Repairers in the
EU. The remaining diagrams, which relate to certain models (3)
launched after 1 January 1997 and which do not exist in digital
format, shall be available to independent repairers through GME
Call Centre Services. Such Call Centre Services will operate in all
languages required to avoid direct or indirect discrimination
between independent and Opel/Vauxhall authorised repairers,
taking into account the conditions at which such authorised
repairers obtain access to wiring diagrams. The wiring diagrams
will be provided without delay by fax in the smallest packages
that the average independent repairer would need to carry out a
repair job and on the same conditions as they are provided to
Opel/Vauxhall Authorised Repairers. GME commits itself
to
maintain, during the validity of the commitments, the condi-
tions currently applicable for
these non-digitalised wiring
diagrams.

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

GME 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

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

mended by GME.

(2) Fees for the Training Certification will be equivalent for authorised and
independent repairers and GME commits itself to keep them at the
same level during the validity of the commitments. The training will
comprise (i) two days instructor-based training (cost of between
EUR 115 and EUR 230 per day depending upon the national market)
and (ii) a one day Tech2 web-based training (cost of between EUR 30
and EUR 50 per day, again depending on the national market in ques-
tion). The training will be provided by the GM Academy.

As regards access to the TI website, GME agrees to provide for a
pro rata breakdown into hourly, daily, weekly, monthly and
yearly time windows at a price of respectively EUR 4, EUR 30,
EUR 100, EUR 300 and EUR 3 700. For initial access to the TI
website, a one-time registration fee of EUR 15 will be charged
+ 3,9 % handling fee. Tech1/Tech2 SWDL (Diagnostic Tester
Software Download) will be available through the annual
subscription to the TI website, or by paying a stand-alone
monthly subscription fee of EUR 100. GME will maintain this
access fee structure, and will not increase fee levels above the
average inflation rate within the EU.

(3) Of these models only two (Agila and Movano) are still in production
and for both wiring diagrams relating to their variants launched from
2002 are available on the TI website. The only models for which the
diagrams are available only through GME Call Centre Services (Arena
and Sintra) stopped being produced in 1999 and 2001. For the
remaining models, the TI website contains wiring diagrams for variants
launched from 2002 (Astra-G, Frontera-B, Zafira-A) or from 2003
(Speedster).

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Official Journal of the European Union

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3.3 Minimum standards principle

4. INVITATION TO MAKE COMMENTS

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

3.4 Dispute resolution

In order to address any complaint raised by an independent
repairer concerning access to Technical Information, GME will
put in place a GME ‘Ombudsman’. Upon receipt of an indepen-
dent repairer's complaint the GME ‘Ombudsman’ shall, within a
three weeks from receiving the complete file,
maximum of
provide the independent repairer with a GME Response. In case
the GME Response, GME
a complainant does not accept
commits to accept an arbitration mechanism for
resolving
disputes relating to the provision of Technical
Information
whereby each party to such a dispute may nominate one expert,
who may then jointly decide on the appointment of a third.

The arbitration shall take place in the Member State where the
requesting party's registered seat is located. The language of the
arbitration proceedings will be the official language at the place
of arbitration. 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/39.143 — Opel, 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