2007/788/EC: Commission Decision of 13 September 2007 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/E-2/39.140 — DaimlerChrysler) (notified under document number C(2007) 4275)
Date: 2007-09-13
Institutions: European Commission
Subjects: after-sales service, application of EU law, competition law, economic concentration, general mechanical engineering, merger control, motor car, spare part

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Official Journal of the European Union

5.12.2007

COMMISSION

COMMISSION DECISION

of 13 September 2007

relating to a proceeding pursuant to Article 81 of the EC Treaty
(Case COMP/E-2/39.140 — DaimlerChrysler)
(notified under document number C(2007) 4275)

(Only the English text is authentic)

(2007/788/EC)

(1)

(2)

This decision adopted pursuant to Article 9(1) of Council
Regulation (EC) No 1/2003 (1) is addressed to Daimler-
Chrysler AG (hereinafter DaimlerChrysler) and concerns
the supply of technical
information for the repair of
vehicles of the Mercedes-Benz and Smart brands.

Technical
information consists of data, processes and
instructions which are necessary to check, repair and
replace defective/broken/used parts of a motor vehicle
to fix failures in any of a vehicle’s systems.
It
or
includes seven main categories:

— basic parameters

(documentation of all

values and set points of
concerning the vehicle,
brake
pneumatic pressures),

such as
clearance measurements,

reference
the measurable values
torque settings,
and
hydraulic

— diagrams and descriptions of stages in repair and
maintenance
handbooks,
technical documents such as work plans, descriptions
of
tools used to carry out a given repair, and
diagrams such as wiring schematics or hydraulics),

operations

(service

— testing and diagnosis
(including diagnostic fault/
troubleshooting codes,
infor-
software and other
mation needed to diagnose faults on vehicles) —
much, but not all, of this information is contained
in specialised electronic tools,

— codes, software and other information needed to re-
program, re-set or re-initialise the electronic control
units (ECUs) embarked on a vehicle. This category is
linked to the preceding one, in that often the same
electronic tools are used to diagnose the fault, and
then make the necessary adjustments via the ECUs to
deal with it,

— spare parts information,

including parts catalogues
with codes and descriptions, and vehicle identification
methods (that is to say, data relating to a specific
vehicle which enable a repairer to identify the indi-
vidual codes
fitted during vehicle
assembly, and to identify the corresponding codes
for compatible original replacement parts for that
specific vehicle),

the parts

for

(3)

(4)

— special information (recall notices and notification of

frequent faults),

— training materials.

In December 2006, the Commission opened proceedings,
and addressed a preliminary assessment
to Daimler-
Chrysler, containing the preliminary view that Daimler-
Chrysler’s agreements with its after-sales service partners
raised concerns as to their compatibility with Article
81(1) of the EC Treaty.

investigation was

In the Commission’s preliminary assessment, Daimler-
Chrysler seemed to have failed to release certain cat-
egories 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
launched, Daimler-
Chrysler had still not put in place an effective system
to allow independent
to
technical repair information in an unbundled manner.
Although DaimlerChrysler improved the accessibility of
the
its
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.

information over

course of

technical

to have

repairers

access

the

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1). Regulation as last
amended by Regulation (EC) No 1419/2006 (OJ L 269, 28.9.2006,
p. 1).

(2) Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the
application of Article 81(3) of the Treaty to categories of vertical
agreements and concerted practices in the motor vehicle sector
(OJ L 203, 1.8.2002, p. 30). Regulation as amended by the 2003
Act of Accession.

(5)

(6)

(7)

(8)

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found that

the relevant
That preliminary assessment
issue were the
markets affected by the practice at
for the provision of repair and maintenance
market
the
services for passenger cars, and the market
information to repairers. The
provision of
Mercedes-Benz and Smart authorised networks had very
high market shares on the first of these markets, while
on the second, DaimlerChrysler was the only supplier
able to offer all of the technical information needed by
repairers of its vehicles.

technical

for

as

and act

In essence, DaimlerChrysler’s service and parts distri-
bution agreements require the members of its authorised
networks to carry out a full range of brand-specific repair
services,
spare parts wholesalers. The
Commission is concerned that possible negative effects
stemming from such agreements could be strengthened
by DaimlerChrysler’s
failure to provide independent
repairers with appropriate access to technical information
thereby foreclosing firms which would be willing and
able to offer repair services through a different business
model.

(10) On

14

February

2007, DaimlerChrysler

offered
commitments to the Commission in order to meet the
competition concerns
addressed in the preliminary
assessment.

(11) According to those commitments, the principle deter-
mining 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 main-
tenance 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.

(12)

for

The Commission’s preliminary conclusion was
that
DaimlerChrysler’s
its
providing
arrangements
technical
information to independent repairers did not
correspond to the latters’ needs either as regards the
scope of the information available or as regards its ac-
cessibility, and that such a practice, in combination with
similar practices by other car manufacturers, could have
contributed to a decline in the market position of inde-
pendent repairers. In turn, this could have caused con-
siderable 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.

‘technical

information’
The commitments specify that
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
Mercedes-Benz and Smart motor vehicles. Particular
examples include software, fault codes and other para-
meters,
together with updates, which are required to
work on electronic control units (ECUs) with a view to
introducing or
recommended by
DaimlerChrysler, 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
that may be carried out
notices
without charge within the authorised repair network.

identifying repairs

restoring settings

appropriate

repairers with

information might prevent
service partners

Moreover, DaimlerChrysler’s apparent failure to provide
access
independent
to
the agreements
technical
from benefiting
with its after-sales
from the exemption granted by Regulation (EC) No
1400/2002, since according to Article 4(2) of the Regu-
lation,
the exemption granted therein does not apply
where the supplier of motor vehicles refuses to give
infor-
independent operators access to any technical
mation,
tools,
equipment,
and
including any relevant software, or training required for
the repair and maintenance of these motor vehicles. As
clarified in recital 26 of the regulation, the conditions of
access must not discriminate between authorised and
independent operators.

diagnostic

other

(9)

Finally, the Commission came to the preliminary view
that in the context of lack of access to technical repair
information,
the agreements between DaimlerChrysler
and its authorised repairers were unlikely to benefit
from the provision of Article 81(3).

(13) Access to tools includes access to electronic diagnostic
and other repair tools, together with related software,
including periodic updates
and after-sales
services for such tools.

thereof,

(14)

importers of

The commitments shall bind DaimlerChrysler and its
shall not be directly
connected undertakings but
binding on independent
the Mercedes-
Benz and Smart brands. DaimlerChrysler has therefore
agreed that in those Member States in which Daimler-
Chrysler 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
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.

technical

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in a particular EU language, DaimlerChrysler will ensure
that this language version of the information is placed on
the TI website without undue delay.

(19) 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 proportionality requirement laid
down in the
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,
to maintain this
respectively. DaimlerChrysler agrees
access
to increase fee levels
fee structure, and not
above the average inflation rate within the EU during
the whole currency of the commitments.

regulation, DaimlerChrysler agrees

(20) DaimlerChrysler’s commitments are without prejudice to
requirement
established by
any
future
current or
Community or national
law which might extend the
scope of the technical information that DaimlerChrysler
is to provide to independent operators and/or might set
out more favourable ways for such information to be
provided.

(21)

(22)

If an independent repairer or association of such repairers
so requests, DaimlerChrysler has committed itself
to
accept arbitration for settling disputes relating to the
provision of technical information. This arbitration shall
be governed by the national rules of arbitration and the
substantive law that DaimlerChrysler has contractually
agreed upon with its
in the
Member State where the requesting party is located.
DaimlerChrysler commits itself to provide information
on these rules upon request. The arbitral tribunal shall
consist of three arbitrators appointed in accordance with
these Rules. Arbitration will not prejudice any right to
file an application with the competent national court.

authorised repairers

are no longer grounds

in view of the commitments,
The Decision finds that,
there
the
Commission. The commitments will be binding until
31 May 2010.

action by

for

(23)

The Advisory Committee on Restrictive Practices and
Dominant Positions
issued a favourable opinion on
9 July 2007.

(15) According

to recital 26 of Regulation (EC) No
1400/2002, DaimlerChrysler 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
to be interpreted narrowly. The
law,
recital 26 is
commitments note that
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 infor-
independent
mation in question does not prevent
repairers from carrying out operations other than those
including work on devices such as
listed in recital 26,
engine management
pre-
airbags,
tensioners, or central locking elements.

seatbelt

ECUs,

(16) Article 4(2) of Regulation (EC) No 1400/2002 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

(17)

if certain items of technical

In line with this principle, the commitments specify that
DaimlerChrysler will
include on the TI website all
information relating to models launched after
technical
1996, and will ensure that all updated technical
infor-
mation is on the TI website or on any successor site at
infor-
all times. However,
launched after 1996 or
mation relating to models
language versions thereof
that DaimlerChrysler or its
connected undertakings provides to authorised repairers
in a given Member State are not available on the TI
shall be deemed to have
website, DaimlerChrysler
complied with the commitments in this respect
it
in question available without
has made the items
undue delay
to independent
repairers on its commercial website in the Member
State in question.

and free of

charge

if

(18) DaimlerChrysler will at all

times ensure that

the TI
website may be easily located and provides an equivalent
level of performance to the methods used for providing
technical
its authorised
networks. When DaimlerChrysler or another undertaking
acting on DaimlerChrysler’s behalf makes a piece of
information available to authorised repairers
technical

information to members of

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

mended by DaimlerChrysler.