2007/841/EC: Commission Decision of 13 September 2007 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/E-2/39.141 — Fiat) (notified under document number C(2007) 4274)
Date: 2007-09-13
Institutions: European Commission
Subjects: access to information, after-sales service, competition law, disclosure of information, general mechanical engineering, motor vehicle industry, provision of services

18.12.2007

EN

Official Journal of the European Union

L 332/77

COMMISSION

COMMISSION DECISION

of 13 September 2007

relating to a proceeding pursuant to Article 81 of the EC Treaty
(Case COMP/E-2/39.141 — Fiat)
(notified under document number C(2007) 4274)

(Only the English text is authentic)

(2007/841/EC)

(1)

(2)

This decision adopted pursuant to Article 9(1) of Council
Regulation (EC) No 1/2003 of 16 December 2002 on
the rules on competition laid
the implementation of
is
down in Articles 81 and 82 of
‘Fiat’) and
addressed to Fiat Auto SpA (hereinafter
information for the
concerns the supply of
repair of vehicles of the Fiat, ALFA Romeo and Lancia
brands.

the Treaty (1)

technical

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.
or
It
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/
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,

— 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.

(3)

(4)

addressed

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

a preliminary

assessment

the time that

In the Commission’s preliminary assessment, Fiat 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 sector (2).
the Commission’s investi-
Moreover, at
gation was launched, Fiat had still not put in place an
effective system to allow independent repairers to have
access to technical repair information in an unbundled
manner. Although Fiat improved the accessibility of its
technical information over the course of the Commission
investigation, notably by setting up a website (the TI
in June 2005 designed for that purpose, the
website)
information made available to independent
repairers
seemed to be still incomplete.

(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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(5)

(6)

(7)

(8)

(9)

found that

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

for

Fiat’s
require

its

and

parts

essence,

service
the members of

distribution
In
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 Fiat’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.

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

(10) On 22 January 2007, Fiat 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, Fiat will ensure that
all
software
and training required for the repair and maintenance of
its vehicles which is provided to authorised repairers
and/or independent importers in any EU Member State
by or on behalf of Fiat is also made available to inde-
pendent repairers.

tools, equipment,

information,

technical

The Commission’s preliminary conclusion was that Fiat’s
arrangements for providing its 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 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.

(12)

‘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
Fiat, ALFA Romeo and Lancia motor vehicles. Particular
examples include software, fault codes and other para-
together with updates, which are required to
meters,
work on electronic control units (ECUs) with a view to
introducing or restoring settings recommended by Fiat,
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 notices identifying
repairs that may be carried out without charge within
the authorised repair network.

Moreover, Fiat’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
other
diagnostic
including any relevant software, or
equipment,
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 discri-
minate between authorised and independent operators.

information,

technical

tools,

and

Finally, the Commission came to the preliminary view
that in the context of lack of access to technical repair
and its
information,

agreements between Fiat

the

(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)

Lancia

vehicles

The commitments shall bind Fiat and its connected
undertakings but shall not be directly binding on inde-
importers of Fiat’s vehicle brands.
pendent
In those
in which Fiat distributes Fiat, ALFA
Member States
Romeo
independent
and/or
importers, Fiat has therefore agreed to make its best
efforts
to
supply Fiat with any technical information or language
versions of technical information that they have provided
to authorised repairers in the Member State concerned.
Fiat has committed itself to place this technical
infor-
mation or language versions on its TI website without
delay.

to contractually oblige these undertakings

via

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— notices identifying repairs that may be carried out
repair

charge within

authorised

the

without
network, and

— identification of the mediation centres referred to in

paragraph 21 below.

The commitments specify that Fiat’s access fee structure
for the site will be based on the cost of a yearly
subscription to the full bundle of the CD-ROMs that it
provides to its authorised repairers; namely EUR 3 356,
plus EUR 65 for the parts catalogue and an additional
monthly subscription fee of EUR 134 for updates.
However,
the proportionality
to respect
requirement laid down in the Regulation, Fiat agrees to
provide for a pro rata breakdown into monthly, daily, and
hourly time windows at a price for each brand of EUR 3
per hour, EUR 22 per day and EUR 350 per month. Fiat
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.

in order

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

If an independent repairer or association of such repairers
so requests, Fiat has committed itself
to accept a
mediation mechanism for settling disputes relating to
information. The mediation
the provision of technical
will take place in the Member State where the requesting
party’s registered seat is located under the rules of a
recognised local mediation centre. Mediation 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

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

(19)

(20)

(21)

(22)

(23)

(15) According to recital 26 of the Regulation, Fiat 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)
to tamper with devices which
electronic devices, or
limit a vehicle’s performance. As with any exception
under EU law, recital 26 is to be interpreted narrowly.
The commitments note that if Fiat were to invoke this
exception as a reason for withholding any technical
has
information
it
committed
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
inde-
pendent repairers from carrying out operations other
than those listed in recital 26,
including work on
devices
such as engine management ECUs, airbags,
seatbelt pre-tensioners, or central locking elements.

from independent
to ensure

repairers,
the

itself

that

(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)

(18)

include on the TI website all technical

In line with this principle, the commitments specify that
Fiat will
infor-
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, Fiat 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
its authorised networks.
When Fiat or another undertaking acting on Fiat’s
behalf makes a piece of technical information available
to authorised repairers in a particular EU language, Fiat
will ensure that this language version of the information
is placed on the TI website without delay.

The following three categories of technical
information
are not yet on the TI website, but Fiat has committed
itself to place them there by 31 December 2007:
— translations in local

infor-
mation currently not in Fiat’s possession, but to be
provided by its independent
importers in the EU
Member States concerned,

languages of

technical

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

mended by Fiat.