2001/711/EC: Commission Decision of 29 June 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/F-2/36.693 — Volkswagen) (Text with EEA relevance) (notified under document number C(2001) 1698)

• Published date: 02 October 2001
• Subject Matter: competencia,Prácticas colusorias,concurrence,Ententes
• Official Gazette Publication: Diario Oficial de las Comunidades Europeas, L 262, 02 de octubre de 2001,Journal officiel des Communautés européennes, L 262, 02 octobre 2001

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2001/711/EC: Commission Decision of 29 June 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/F-2/36.693 — Volkswagen) (Text with EEA relevance) (notified under document number C(2001) 1698)

Official Journal L 262 , 02/10/2001 P. 0014 - 0037

Commission Decision

of 29 June 2001

relating to a proceeding under Article 81 of the EC Treaty

(Case COMP/F-2/36.693 - Volkswagen)

(notified under document number C(2001) 1698)

(Only the German text is authentic)

(Text with EEA relevance)

(2001/711/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation No 17 of 6 February 1962, first Regulation implementing Articles 85 and 86 of the Treaty(1), as last amended by Council Regulation (EC) No 1216/1999(2), and in particular Article 15(2) thereof,

Having regard to the Commission decision of 21 June 1999 to initiate proceedings in this case,

Having given the parties concerned the opportunity to make known their views on the objections raised by the Commission, pursuant to Article 19(1) of Regulation No 17 and Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty(3),

After consulting the Advisory Committee on Restrictive Practices and Dominant Positions,

Whereas:

1. INTRODUCTION

1.1. Procedure

(1) A Volkswagen AG circular dated 17 April 1997 was brought to the Commission's attention in the form of an annex to a complaint from a car buyer. In it, Volkswagen's Marketing Director for Germany called on Volkswagen dealers and garages to sell the new VW Passat Variant model, introduced in Germany on 6 June 1997, for not less than the recommended retail price and to observe "strict price discipline".

(2) In its reply to a formal request for information sent by the Commission pursuant to Article 11 of Regulation No 17(4), Volkswagen AG submitted two further circulars concerning the price of the new VW Passat dated 26 September 1996 and 26 June 1997.

(3) On the basis of this information and of further details provided by Volkswagen AG(5), the Commission sent Volkswagen AG a statement of objections on 22 June 1999. In the statement of objections, Volkswagen AG is charged with having infringed Article 81 of the EC Treaty by agreeing, with the German dealers belonging to its distribution network, on strict price discipline in connection with the sale of the VW Passat model.

(4) Volkswagen AG replied to the statement of objections by letter dated 10 September 1999 and confirmed that the facts set out in the statement of objections of 22 June 1999 were essentially correct(6). For the rest, it set out its views on the legal assessment and the Commission's objections in particular. It did not request a hearing.

(5) This Decision is addressed to Volkswagen AG.

1.2. The undertaking

(6) Volkswagen AG, with its registered office in Wolfsburg, is the parent company of the Volkswagen group. The group's business includes the manufacture of motor vehicles of the Volkswagen, Audi, Seat and Skoda makes, and the manufacture of components and parts for its worldwide group structure. The group's business also includes industrial motors, spare parts, financial services and insurance operations.

(7) Volkswagen AG's turnover in the period 1995 to 2000 was as follows:

>TABLE>

1.3. The position of the new VW Passat on the market

(8) The new VW Passat B 5 limousine was introduced in Germany on 11 October 1996, and the VW Passat B 5 Variant, which has a different body style based on the limousine, on 6 June 1997.

(9) New registrations of the new VW Passat in the EU were as follows (in number of cars):

>TABLE>

(10) Supplies to customers in Germany were as follows(7):

>TABLE>

(11) The car industry and the motor vehicle trade(8)and market analysts start from the assumption that, from the final consumer's point of view, cars are not freely substitutable for one another. They therefore traditionally categorise cars into "segments". This is done on the basis of objective criteria such as car length, purchase price, body type, engine performance and brand image(9). A distinction is normally made between the following "segments": A: very small cars; B: small cars; C: medium cars; D: upper-medium cars; E: executive cars; F: luxury cars; and G: multipurpose vehicles and sports cars. Segment G is occasionally subdivided still further, sometimes into the segments low-priced sports cars, high-priced sports cars, multipurpose vehicles and off-road vehicles(10), and sometimes into the segments multipurpose vehicles, coupés, cabriolets and off-road vehicles(11).

(12) The Commission's six-monthly reports on car prices in the European Union (see also recital 17) are also based on this classification and contain price data on car models grouped according to the abovementioned seven segments A to G so as to be able to represent together models which are comparable from the consumer's standpoint.

(13) Reference may also be made to the 23rd reader survey of the best cars carried out by the German magazine auto, motor und sport(12). In this survey, 277 car models are divided into 10 categories(13). The six categories A: minicars, B: small cars, C: lower-medium cars, D: medium cars, E: upper-medium cars and F: luxury cars correspond in substance, as can be seen from a comparison of the cars in each category or segment, to the first six segments mentioned in recital 11. Coupés, cabriolets, off-road vehicles and vans form separate categories.

(14) According to Volkswagen, the Passat is to be classified in the segment referred to here as segment D "upper-medium cars" (car length approximately 4,45 to 4,75 m and a price range of between some DEM 32000 for the basic model to approximately DEM 60000 for the top-of-the-range model)(14). This segment also includes the vehicle models made by other manufacturers named by Volkswagen as being alternatives to the Passat such as the Audi A 4, Opel Vectra, BMW 3-series, Ford Mondeo and Mercedes C-class.

(15) Other competing models in the upper-medium class are the Alfa Romeo 156, Citroën Xantia, Lancia Dedra, Fiat Marea, Honda Accord, Mazda 626, Mitsubishi Carisma, Nissan Primera, Peugeot 406, Renault Laguna, Rover 400/600, Subaru Legacy, Suzuki Baleno, Toyota Avensis and the Volvo S/V40.

(16) Share of the VW Passat in the upper-medium segment (segment D) in Germany:

>TABLE>

1.4. Price differentials of the VW Passat between Member States

(17) Twice a year the Commission publishes a survey of car prices in the European Union(15). The data are supplied by manufacturers. One of the Commission's aims in publishing these surveys is to increase price transparency. The intention is to enable final consumers to buy cars in those Member States where prices and other conditions are most favourable. The Commission's aim here is not to bring about price uniformity in the European Union, but rather to ensure that, through increased price transparency, price differentials will diminish as a result of the market forces released.

(18) On the basis of these price surveys, the price differentials between the various Member States in the case of the VW Passat can be exemplified as follows, using the data available for the basic 100 bhp VW Passat saloon:

Basic VW Passat saloon, 100 bhp, 5-speed gearbox, 4 doors (*):

>TABLE>

(*) The pre-tax price in the cheapest country is represented as 100, with only Belgium, Germany, Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal and the United Kingdom being taken into account. Car prices in these countries are published in the six-monthly surveys of car prices in the European Union. In the three countries whose names are italicised above (Denmark, Finland and Greece), the price was calculated in relation to the cheapest of the other 12 countries. Following the introduction of the common currency on 1 January 1999, the presentation was changed in that the cheapest country in the euro zone (Finland) is now taken as the reference market.

2. THE VOLKSWAGEN DISTRIBUTION SYSTEM AND THE RELATIVE POSITION OF VOLKSWAGEN ON THE MARKET FOR NEW VEHICLES

(19) In Germany, as in the other Member States of the European Union, the cars produced by Volkswagen AG are distributed via an exclusive, selective distribution system through dealers, with whom Volkswagen AG has concluded a dealer agreement. Under section 4(1) of the standard dealer agreement in the September 1995 version, and also under the agreements in force as from 1 January 1998, Volkswagen AG confers on each dealer a contract territory for the range of vehicles and for customer service. The dealer commits himself to intensively promoting sales and customer service in the specific area of the market for which he is responsible and to exploiting the market's potential to the best of his ability(16). Pursuant to section 4(2) of the dealer agreement, the dealer may neither employ agents nor maintain establishments or warehouses outside the specific territory for which he is responsible. He may engage in personalised advertising in that territory only. Pursuant to section 2(6) of the dealer agreement, German Volkswagen dealers may not supply new vehicles to independent resellers.

(20) To a limited extent, new vehicles are also distributed through Volkswagen garages. These sell the vehicles as commission/sales agents on behalf of a Volkswagen dealer. The Volkswagen dealer is the direct contracting partner of the purchaser of the new vehicle and sets the selling price.

(21) The interests of the German Volkswagen and Audi dealers vis-à-vis Volkswagen AG are represented by the Volkswagen and Audi dealer association, comprising managing board and management. Regular meetings take place between representatives of the association and Volkswagen AG. At...