2007/836/EC: Commission Decision of 13 September 2007 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/E-2/39.143 — Opel) (notified under document number C(2007) 4277)
Date: 2007-09-13
Institutions: European Commission
Subjects: access to information, general mechanical engineering, information, mechanical engineering, motor vehicle, restriction on competition

L 330/44

EN

Official Journal of the European Union

15.12.2007

COMMISSION

COMMISSION DECISION

of 13 September 2007

relating to a proceeding pursuant to Article 81 of the EC Treaty
(Case COMP/E-2/39.143 — Opel)
(notified under document number C(2007) 4277)

(Only the English text is authentic)

(2007/836/EC)

(1) This Decision adopted pursuant to Article 9(1) of 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 (1) is addressed to General
Motors Europe (hereinafter GME) and concerns the supply
of technical information for the repair of vehicles of the
Opel and Vauxhall brands.

(2) Technical

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

— basic parameters (documentation of all reference values
and set points of the measurable values concerning the
vehicle,
clearance
measurements, hydraulic and pneumatic pressures),

settings, brake

such as

torque

electronic tools are used to diagnose the fault, and then
make the necessary adjustments via the ECUs to deal
with it,

and vehicle

and descriptions,

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

the parts

codes

for

— special

information (recall notices and notification of

frequent faults),

— training materials.

(3)

(4)

operations

— diagrams and descriptions of stages in repair and main-
tenance
technical
(service
documents such as work plans, descriptions of tools
used to carry out a given repair, and diagrams such
as wiring schematics or hydraulics),

handbooks,

— testing and diagnosis

(including diagnostic

fault/-
trouble-shooting codes, software and other information
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
in that often the same
linked to the preceding one,

addressed

In December 2006, the Commission opened proceedings,
and
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.

preliminary

assessment

a

In the Commission’s preliminary assessment, GME seemed
to have failed to release certain categories of
technical
repair information well after the end of the transitional
period provided for in 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
the Commission’s
sector (2). Moreover, at the time that
investigation was launched, GME had still not put
in
place an effective system to allow independent repairers
to have access to technical
information in an
unbundled manner. Although GME improved the accessi-
bility of its technical
information over the course of the
Commission investigation, the information made available
to independent repairers seemed to be still incomplete.

repair

(1) OJ L 1, 4.1.2003, p. 1. Regulation as last amended by Regulation

(EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).

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

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Official Journal of the European Union

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(5) That preliminary assessment

found that

the relevant
markets affected by the practice at issue were the market
for the provision of repair and maintenance services for
passenger cars, and the market
the provision of
information to repairers. The Opel/Vauxhall
technical
authorised networks had very high market shares on the
first of these markets, while on the second, GME was the
only supplier able to offer all of the technical information
needed by repairers of its Opel/Vauxhall vehicles.

for

(6)

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 act as
spare parts wholesalers. The Commission is concerned that
possible negative effects stemming from such agreements
could be strengthened by GME’s failure to provide inde-
repairers with appropriate access to technical
pendent
information thereby foreclosing firms which would be
willing and able
through a
different business model.

to offer

services

repair

(7) The Commissions preliminary conclusion was that GME’s
information to
arrangements for providing its technical
independent repairers did not correspond to the latters’
needs either as regards the scope of
the information
available or as regards its accessibility, 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 independent repairers. In turn, this
could 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.

(8) Moreover, GME’s apparent failure to provide independent
repairers with appropriate access to technical information
might 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 infor-
including
mation, diagnostic and other equipment, tools,
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.

(9)

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

(10) On 9 February 2007 GME 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
In this light, GME will ensure that
authorised repairers.
information, tools, equipment, software and
all technical
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.

(12) The commitments

fault

software,

‘technical

specify that

information’
within the meaning of Article 4(2) of Regulation (EC) No
1400/2002 includes all
information provided to Opel/-
Vauxhall authorised repairers for the repair or maintenance
of Opel/Vauxhall motor vehicles. Particular
examples
and other parameters,
codes
include
together with updates, which are required to work on
electronic control units (ECUs) with a view to introducing
or restoring settings recommended by GME, vehicle iden-
tification methods, parts catalogues, working solutions
resulting
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.

from practical

and relating

experience

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

(14) 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) electronic 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.

(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 question). The training will be provided by the
GM Academy.

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Official Journal of the European Union

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(15) 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 infor-
mation 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 prevent
independent repairers from carrying out operations other
than those listed in recital 26, including work on devices
such as engine management ECU, airbags, seatbelt pre-
tensioners, or central locking elements.

(16) Article 4(2) of the 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.

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 discri-
and Opel/Vauxhall
independent
between
mination
the conditions
authorised repairers,
taking into account
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
they are
authorised repairers. GME
provided to Opel/Vauxhall
to maintain, during the validity of
commits itself
the
commitments,
the conditions currently applicable for
these non-digitalised wiring diagrams.

job and on the same conditions as

include on the TI website all technical

(17) In line with this principle, the commitments specify that
infor-
GME will
mation 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. Moreover,
GME will at all times ensure that the website may be
level of
easily
performance to the methods used for providing technical
information to members of Opel/Vauxhall authorised
network. When GME or another undertaking acting on
information
GMEs behalf makes a piece of
technical
available
in a particular EU
to authorised repairers
language, GME will ensure that this language version of
the information is placed on the TI website without delay.

located and provides

an equivalent

(18) 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 % handling fee), and local call
tariffs will apply.

all

(19) As regards wiring diagrams, GME will place on the TI
website
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,
after
which

certain models (1)

launched

relate

to

(1) 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).

(20) As regards access to the TI website, GME agreed 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
charged + 3,9 % handling fee.
of EUR 15 will be
Software
SWDL
Tech1/Tech2
(Diagnostic
Download) will
annual
available
be
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
during the whole currency of the commitments.

through

Tester

the

future

requirement

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

repairer concerning access to technical

(22) In order to address any complaint raised by an inde-
infor-
pendent
mation, GME will put
in place a GME Ombudsman.
Upon receipt of an independent repairer’s complaint the
GME Ombudsman will, within a maximum of three weeks
from receiving the complete file, provide the independent
repairer with a GME Response. In case a complainant does
not accept the GME Response, GME will accept an arbi-
tration 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 arbi-
tration shall take place in the Member State where the
requesting partys 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.

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(23) The Decision finds that, in view of the commitments, there are no longer grounds for action by the

Commission. The commitments will be binding until 31 May 2010.

(24) The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion

on 9 July 2007.