Judgments nº T-48/04 of Court of First Instance of the European Communities, June 19, 2009

• Resolution Date: June 19, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-48/04

In Case T-48/04,

Qualcomm Wireless Business Solutions Europe BV, established in Waarle (Netherlands), represented by G. Berrisch, lawyer, and D. Hull, Solicitor,

applicant,

v

Commission of the European Communities, represented initially by K. Mojzesowicz and A. Whelan, and subsequently by K. Mojzesowicz and X. Lewis, acting as Agents,

defendant,

supported by

Federal Republic of Germany, represented initially by C.-D. Quassowski and S. Flockermann, acting as Agents, and subsequently by M. Lumma, acting as Agent, and by U. Karpenstein and A. Rosenfeld, lawyers,

and by

Deutsche Telekom AG, established in Bonn (Germany),

Daimler AG, formerly DaimlerChrysler AG, established in Stuttgart (Germany),

and

Daimler Financial Services AG, formerly DaimlerChrysler Services AG, established in Berlin (Germany),

represented by J. Schütze and A. von Graevenitz, lawyers,

interveners,

APPLICATION for annulment of Commission Decision 2003/792/EC of 30 April 2003 declaring a concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2903 - DaimlerChrysler/Deutsche Telekom/JV) (OJ 2003 L 300, p. 62),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of J. Azizi (Rapporteur), President, E. Cremona and S. Frimodt Nielsen, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 1 July 2008,

gives the following

Judgment

Legal context

1 In accordance with Article 2(2) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (corrected version in OJ 1990 L 257, p. 13), amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1) (-the Merger Regulation-), a concentration which does not create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it is to be declared compatible with the common market.

2 Article 8(2) of that regulation provides that where the Commission finds that a concentration fulfils, following modification by the undertakings concerned if necessary, the criterion laid down in Article 2(2), it is to issue a decision declaring the concentration compatible with the common market. That decision may have attached to it conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the common market. The decision declaring the concentration compatible is also to cover restrictions directly related and necessary to the implementation of the concentration.

3 Article 20(1) of the Merger Regulation provides that the Commission is to publish the decisions which it takes pursuant to Article 8(2) to (5) in the Official Journal of the European Communities.

Facts

4 The applicant, Qualcomm Wireless Business Solutions Europe BV (-Qualcomm-), supplies throughout Europe a satellite-based truck fleet management system called -EutelTRACS-. Using a satellite-based network, Qualcomm collects information transmitted from the truck, such as position-location data, engine diagnostics and messages from the drivers, and transmits that information to its customers- dispatch offices. It also transmits messages from the dispatch offices to the truck drivers. To that end, Qualcomm supplies the necessary equipment and service infrastructure. It is also active in the manufacture of that equipment and in the development of the software necessary to operate the EutelTRACS system.

5 In 2002 the Federal Ministry of Transport, Construction and Housing organised, on behalf of the German Government, a public tender for the establishment and operation of a system, with an automatic and manual charging system, for the collection of a usage charge on German motorways from heavy goods vehicles with a tonnage of 12 tonnes or more (-heavy goods vehicles- or -trucks-). The tender did not require any specific technology.

6 The contract was awarded to a consortium formed by DaimlerChrysler Services AG, Deutsche Telekom AG and the Compagnie financière et industrielle des autoroutes SA (Cofiroute) (-the parties to the concentration-).

7 Daimler Financial Services AG, formerly DaimlerChrysler Services, is a subsidiary of Daimler AG, formerly DaimlerChrysler AG, which operates in the financial services and mobility management sectors. Its activities include the management of fleets of varied composition covering all Daimler makes of vehicle. Daimler develops, manufactures and markets cars, trucks, buses and diesel engines.

8 Deutsche Telekom is a telecommunications operator providing, inter alia, mobile telephony services in Europe.

9 Areas of business in which Cofiroute is active include motorway toll collection.

10 The consortium formed by these undertakings subsequently established Toll Collect GmbH to build and operate the system for collecting the usage charges on German motorways from heavy goods vehicles.

11 Toll Collect thus developed a telematics solution for automatic toll collection. That solution involves installing on-board units in heavy goods vehicles which wish to make use of the automatic toll collection. The on-board units operate with a GPS (Global Positioning System) receiver and a GSM (Global System for Mobile Communications) transmitter. The GPS receiver determines the truck-s current position and feeds it into the on-board unit. Those data are then exchanged via the GSM transmitter between the on-board unit and an application services centre. The data are processed at the centre, that is to say, on the basis of the position as determined and the section of the motorway used, the toll due is calculated and charged to the owner or operator of the truck. The on-board unit is supplied free of charge by Toll Collect to transport undertakings against security in the form of a toll credit. However, the owner or operator of the truck bears the cost of installing the on-board unit. In addition to automatic toll collection, Toll Collect-s on-board units can be used for other telematics services including remote fleet management. The provision by another operator of telematics services through the Toll Collect on-board unit will be possible only once Germany (as the contracting authority) has approved such use of the system.

12 On 11 November 2002, DaimlerChrysler Services and Deutsche Telekom notified the Commission, in accordance with Article 4 of the Merger Regulation, of a proposed concentration by which they were to acquire joint control of Toll Collect through the purchase of shares.

13 Following that notification, the Commission opened the first phase of the merger-control procedure. During that phase, the parties to the concentration submitted a first set of proposed commitments. That proposal was sent to the relevant market players, including Qualcomm, for market testing.

14 By decision of 20 December 2002, the Commission found that the concentration raised serious doubts as to its compatibility with the common market and the functioning of the Agreement on the European Economic Area (EEA) and opened the second phase of the procedure in accordance with Article 6(1)(c) of the Merger Regulation.

15 By letter of 28 February 2003, the Commission sent the notifying undertakings a statement of objections in which it stated that the initial commitments proposed were insufficient to resolve the competition problems arising from the concentration.

16 On 11 March 2003, the parties to the concentration submitted a second set of proposed commitments to the Commission.

17 On 19 and 20 March 2003, the Commission held a hearing in which Qualcomm participated. At that hearing the Commission stated inter alia that the second set of commitments was insufficient to address the competition concerns to which the concentration gave rise.

18 On 3 April 2003, the parties to the concentration submitted a third and final set of commitments to the Commission.

19 By Decision 2003/792/EC of 30 April 2003, the Commission declared the concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2903 - DaimlerChrysler/Deutsche Telekom/JV) (OJ 2003 L 300, p. 62; -the contested decision-), on condition that the commitments offered by the parties to the concentration were complied with in full.

20 In the contested decision, the Commission found that the concentration raised competition concerns on the market affected by the concentration, namely the German market for traffic telematics systems, comprising hardware, software and services, for transport and logistics undertakings, as the infrastructure for toll collection which was to be set up by Toll Collect could be used for the provision by the parties to the concentration of other telematics services. The use of Toll Collect-s infrastructure for the provision of traffic telematics services would allow DaimlerChrysler to obtain, through Toll Collect, a dominant position on the German market for traffic telematics systems, as a result of which effective competition would be significantly impeded in the common market.

21 More specifically, the combination of the provision of the Toll Collect on-board units free of charge and the tight margins within which transport undertakings operate would result in the creation of a dominant platform on the German market for traffic telematics systems for transport and logistics undertakings. Given that DaimlerChrysler was the largest truck manufacturer in Germany and a leading provider of telematics systems and that it would be in a position to control access to data generated by the Toll Collect on-board units which can be used by traffic telematics services, it would be in a position to foreclose the German market for traffic telematics systems and thereby acquire a dominant position on that market of...