2007/831/EC: Commission Decision of 13 September 2007 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/E-2/39.142 — Toyota) (notified under document number C(2007) 4273)
Date: 2007-09-13
Institutions: European Commission
Subjects: access to information, general mechanical engineering, information, mechanical engineering, motor vehicle, restriction on competition

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(Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory)

II

DECISIONS

COMMISSION

COMMISSION DECISION

of 13 September 2007

relating to a proceeding pursuant to Article 81 of the EC Treaty
(Case COMP/E-2/39.142 — Toyota)

(notified under document number C(2007) 4273)

(Only the English text is authentic)

(2007/831/EC)

(1)

(2)

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 Toyota Motor Europe NV/SA (hereinafter
Toyota) and concerns the supply of technical information
for the repair of vehicles of the Toyota brand (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
to fix failures in any of a vehicle’s systems.
It
or
includes seven main categories:

— testing and diagnosis

(including diagnostic fault/
trouble-shooting codes, software and other
infor-
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,

— 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
handbooks,
maintenance
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

(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) In the following sections, the expression ‘Toyota’ is used to designate
‘Toyota Motor Europe NV/SA’ while the expression ‘Toyota brand’ or
‘Toyota vehicle/car’ is used to indicate the motor vehicles commer-
cialised by Toyota under the Toyota brand name.

— 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

— special information (recall notices and notification of

frequent faults),

— training materials.

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(3)

(4)

(5)

(6)

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.

agreements

and concerted practices

In the Commission’s preliminary assessment, Toyota
seemed to have failed to release certain categories of
technical repair information well after the end of the
transitional period provided for in Commission Regu-
lation (EC) No 1400/2002 of 31 July 2002 on the appli-
cation of Article 81(3) of the Treaty to categories of
vertical
in the
motor vehicle sector (1). Moreover, at the time that the
Commission’s investigation was launched, Toyota had
still not put in place an effective system to allow inde-
pendent repairers to have access to technical repair infor-
mation in an unbundled manner. Although Toyota
improved the accessibility of
information
over
the Commission investigation,
notably by increasing the information available on its
technical
information 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 still to be incomplete.

its technical

course of

the

(8)

mation to independent repairers did not correspond to
the latters’ needs either as regards the scope of the infor-
mation 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
independent
in the market position of
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.

Moreover, Toyota’s apparent
failure to provide inde-
pendent repairers with appropriate access to technical
the agreements with its
information might prevent
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 equipment,
including any relevant
tools,
software, or training required for the repair and main-
tenance of these motor vehicles. As clarified in recital 26
of the Regulation, the conditions of access must not
discriminate
independent
operators.

authorised

between

and

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
Toyota authorised networks had very high market
shares on the first of
these markets, while on the
second, Toyota was the only supplier able to offer all
of the technical
information needed by repairers of its
vehicles.

technical

for

its

service

require

the members of

In essence, Toyota’s
and parts distribution
agreements
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 Toyota’s failure to provide independent repairers with
appropriate access to technical information thereby fore-
closing firms which would be willing and able to offer
repair services through a different business model.

(7)

The Commission’s preliminary conclusion was
that
Toyota’s arrangements for providing its technical infor-

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

(9)

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 were unlikely to benefit from the
provision of Article 81(3).

(10) On 22 January 2007, Toyota offered commitments to
the competition

the Commission in order
concerns addressed in the preliminary assessment.

to meet

(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, Toyota will ensure
authorised repairers.
equipment,
tools,
information,
technical
that
software and training required for the repair and main-
tenance of its vehicles which is provided to authorised
repairers and/or
in any EU
Member State by or on behalf of Toyota is also made
available to independent repairers.

independent

importers

all

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(12)

codes

‘technical

and other parameters,

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
Toyota vehicles. Particular examples include software,
fault
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 iden-
tification 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.

(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)

In those Member States

The commitments shall bind Toyota and its connected
undertakings but shall not be directly binding on inde-
pendent importers of Toyota’s vehicle brands, known as
‘non-affiliated national marketing and sales companies’
in
(non affiliated NMSCs).
which Toyota distributes its vehicles via non affiliated
NMSCs, Toyota has therefore agreed to make its best
efforts
to
information or
supply Toyota with any technical
language versions of
they
technical
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.

to contractually oblige these undertakings

information that

(15) According

to recital 26 of Regulation (EC) No
1400/2002, Toyota is not obliged to provide inde-
pendent 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. The commitments note that
if
Toyota were to invoke this exception as a reason for
withholding any technical information from independent
repairers, it has committed itself to ensure that the infor-
mation 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 inde-
pendent repairers from carrying out operations other
including work on
than those listed in recital 26,
devices
such as engine management ECUs, airbags,
seatbelt pre-tensioners, or central locking elements.

(16) Article 4(2) of Regulation (EC) No 1400/2002 provides
that technical information must be made available in a

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

mended by Toyota.

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)

In line with this principle, the commitments specify that
Toyota will include on the TI website all technical infor-
mation relating to models launched as of 1 January
1997, and will ensure that all updated technical
infor-
mation 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
level of performance to the methods used
equivalent
for providing technical
information to members of its
authorised networks. When Toyota or another under-
taking acting on Toyota’s behalf makes a piece of
information available to authorised repairers
technical
in a particular EU language, Toyota will ensure that
this language version of the information is placed on
the TI website without delay.

(18) As

regards

technical

information concerning models
launched by Toyota as of 1 January 1997 and prior to
1 January 2000, Toyota has committed itself to place it
there by 31 December 2007.

(19)

(20)

(21)

access

commitments

specify that Toyota’s

fee
The
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 Regulation, Toyota agrees to provide for a pro rata
breakdown into monthly, weekly, daily,
four-hourly,
three-hourly, two-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 during the whole currency of the commitments.

future

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

established

Toyota has committed itself to implement a specified
complaint handling procedure, which may be applied
to deal with any complaint issued by an independent
independent repairers estab-
repairer or association of
lished in the European Union regarding access
to
technical information.

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(22) According to this procedure,

If

the national marketing and sales

following initial notifi-
cation,
company
(NMSC) will first handle any complaint at its level, by
the appointment of a complaint handler. This complaint
handler will investigate the complaint, provide additional
information or explanation and/or propose a solution to
the complainant.
the complaint handler and the
complainant fail to reach an agreement or settlement
the complaint handler shall
regarding the complaint,
to the helpdesk facility
promptly refer the complaint
set up by Toyota, except if the absence of agreement
or settlement is the result of a lack of responsiveness
inde-
from the independent repairer or association of
then investigate
pendent
the
the
confirm the position of
matter
complaint handler or propose an alternative solution.
In the event that Toyota and the complainant fail to
reach an agreement or
the
complaint, Toyota commits itself to accept arbitration.
In any event, the complainant may request such arbi-
tration twenty business days after the initial notification
of its complaint to an NMSC.

repairers. Toyota will
and

settlement

regarding

either

(23)

(24)

This arbitration will be governed by the respective
national rules of arbitration, and the arbitral
tribunal
will consist of three arbitrators 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 proceedings shall be
the official
language at the place of arbitration. Arbi-
tration will not prejudice any right to file an application
with the competent national court.

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

(25)

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